Agreements of the Issuer and the Guarantors. The Issuer and the Guarantors, jointly and severally, agree with each Underwriter as follows: (a) If, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Notes may commence, each of the Issuer and the Guarantors will use its best efforts to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, immediately after such post-effective amendment has become effective. (b) If, at any time prior to the filing of the Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would (x) include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing, not misleading or (y) conflict with the information contained in the Registration Statement, the Issuer and the Guarantors will (i) notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement, omission or conflicting information; and (iii) supply any amendment or supplement to the Representatives in such quantities as may be reasonably requested. (c) The Issuer and the Guarantors will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing: (i) of any review, issuance of comments or request by the Commission or its staff on or for an amendment of or a supplement to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information regarding the Issuer, the Guarantors, their respective affiliates or any filings with the Commission, whether or not such filings are incorporated by reference into the Registration Statement, any Preliminary Prospectus or the Prospectus; (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Notes for offering or sale in any jurisdiction or the initiation of any proceeding for such purpose or any examination pursuant to Section 8(e) of the Act relating to the Registration Statement or Section 8A of the Act in connection with the offering of the Notes; (iii) of the receipt by the Issuer or any Guarantor of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose; and (iv) within the period of time referred to in the first sentence in subsection (f) below, of any change in the Issuer’s or any Guarantor’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which results in any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) being untrue or which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Issuer and the Guarantors will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time. (d) On request, the Issuer and the Guarantors will furnish to the Representatives and counsel to the Underwriters, without charge: (i) one (1) signed copy of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits to the Registration Statement; (ii) such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto, but without exhibits, as the Representatives may request; (iii) such number of copies of the Incorporated Documents, without exhibits, as the Representatives may request; and (iv) one (1) copy of the exhibits to the Incorporated Documents. (e) Neither the Issuer nor any Guarantor will file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in the first sentence in subsection (f) below, file any document which upon filing becomes an Incorporated Document, of which the Representatives shall not previously have been advised or to which, after the Representatives shall have received a copy of the document proposed to be filed, the Representatives shall reasonably object; and no such further document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of the Issuer and the Guarantors will give the Representatives notice of its intention to make any other filing pursuant to the Exchange Act from the Applicable Time to the Closing Time and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing. (f) After the execution and delivery of this Agreement and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered (or in lieu thereof, the notice referred to in Rule 173(a)) in connection with sales by the Underwriters or any dealer (including circumstances where such requirement may be satisfied pursuant to Rule 172), each of the Issuer and the Guarantors will file promptly all reports and any definitive proxy or information statements required to be filed by the Issuer or the Guarantors with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act and will expeditiously deliver to the Underwriters and each dealer, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto), any Preliminary Prospectus and any Issuer Free Writing Prospectus as each Underwriter may request. Each of the Issuer and the Guarantors consents to the use of the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or blue sky laws of the jurisdictions in which the Notes are offered by the Underwriters and by all dealers to whom Notes may be sold, both in connection with the offering and sale of the Notes and for such period of time thereafter as the Prospectus is required by the Act to be delivered (or in lieu thereof, the notice referred to in Rule 173(a)) in connection with sales by the Underwriters or any dealers. If during such period of time: (i) any event shall occur as a result of which, in the judgment of the Issuer and the Guarantors, or in the opinion of counsel for the Underwriters, the Prospectus as supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading; or (ii) if it is necessary to supplement the Prospectus or amend the Registration Statement (or to file under the Exchange Act any document which, upon filing, would become an Incorporated Document) in order to comply with the Act, the Exchange Act or any other law, the Issuer and the Guarantors will promptly notify the Representatives of such event and forthwith prepare and, subject to the provisions of paragraph (e) above, file with the Commission an appropriate supplement or amendment thereto (or to such document), and will expeditiously furnish to the Underwriters and dealers a reasonable number of copies thereof. In the event that the Issuer and the Representatives agree that the Prospectus should be amended or supplemented, the Issuer, if requested by the Representatives, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplement. (g) Each of the Issuer and the Guarantors will: (i) cooperate with the Underwriters and their counsel in connection with the registration or qualification of the Notes for offering and sale by the Underwriters and by dealers under the securities or blue sky laws of such jurisdictions as the Underwriters may designate; (ii) maintain such qualifications in effect so long as required for the distribution of the Notes; and (iii) file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided that in no event shall the Issuer or any Guarantor be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than those arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject. (h) Unless the Issuer or the Guarantors have or shall have obtained the prior written consent of the Representatives, each of the Issuer and the Guarantors has not made and will not make any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Issuer or the Guarantors with the Commission or retained by the Issuer or the Guarantors under Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses listed in Schedule II hereto and any electronic road show. Any such free writing prospectus consented to by the Representatives or the Issuer and the Guarantors is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Issuer and the Guarantors agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping. (i) The Issuer and the Guarantors will make generally available to its security holders and to the Underwriters as soon as practicable, but in no event later than fifteen (15) months after the end of the Parent’s current fiscal quarter, a consolidated earnings statement of the Parent, which need not be audited, covering a 12-month period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158. (j) During the period commencing on the date hereof and ending on the date occurring three (3) years hereafter, the Issuer and the Guarantors will furnish to the Underwriters: (i) as soon as available, if requested, a copy of each report of the Parent mailed to stockholders or filed with the Commission that is not publicly available on EXXXX or the Parent’s website; and (ii) from time to time such other information concerning the Issuer or the Guarantors as the Representatives may reasonably request. (k) The Issuer and the Guarantors shall reimburse the Underwriters for reasonable out-of-pocket expenses (including the reasonable fees and expenses of counsel for the Underwriters) incurred by the Underwriters in connection herewith if this Agreement is terminated pursuant to any provisions hereof or if this Agreement is terminated by the Representatives because of any inability, failure or refusal on the part of the Issuer or the Guarantors to comply with the terms or fulfill any of the conditions of this Agreement. (l) The Issuer will apply the net proceeds from the sale of the Notes in the manner specified in the Registration Statement, the Disclosure Package and the Prospectus under the heading “Use of Proceeds.” (m) If Rule 430A, 430B or 430C is employed, the Issuer will timely file the Prospectus pursuant to Rule 424(b) and will advise the Representatives of the time and manner of such filing. (n) Neither the Issuer nor any affiliate of the Issuer has taken, nor will the Issuer or any affiliate of the Issuer take, directly or indirectly, any action designed to, or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Issuer to facilitate the sale or resale of the Notes. (o) The Parent will use its best efforts to continue to qualify as a real estate investment trust (a “REIT”) under the Internal Revenue Code of 1986, as amended, and the regulations and published interpretations thereunder (collectively, the “Code”), so long as its Board of Directors deems it in the best interest of the Parent’s stockholders to remain so qualified. (p) Each of the Issuer and the Guarantors will use all reasonable best efforts to do or perform all things required to be done or performed by the Issuer and the Guarantors prior to the Closing Date to satisfy all conditions precedent to the delivery of the Notes pursuant to this Agreement. (q) Neither the Issuer nor the Guarantors will, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge or otherwise dispose of or enter into any transaction that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Issuer or the Guarantors or any affiliate of the Issuer or the Guarantors, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position (within the meaning of Section 16 of the Exchange Act), on any debt securities or guarantees thereon (other than the Notes and the Guarantees); or publicly announce an intention to effect any such transaction, until after the Closing Date. (r) Each of the Issuer and the Guarantors will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Sxxxxxxx-Xxxxx Act of 2002 (the “Sxxxxxxx-Xxxxx Act”), and will use its reasonable best efforts to cause its directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sxxxxxxx-Xxxxx Act. (s) The Issuer and the Guarantors will file any Issuer Free Writing Prospectus to the extent required by Rule 433 within the time period required by such rule. The Issuer will retain, pursuant to reasonable procedures developed in good faith, copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433(g).
Appears in 1 contract
Agreements of the Issuer and the Guarantors. The Issuer and the Guarantors, jointly and severally, agree with each Underwriter of the Initial Purchasers as follows:
(a) If, at The Issuer and the time this Agreement is executed and delivered, it is necessary for a post-effective amendment Guarantors will furnish to the Registration Statement to be declared effective before the offering Initial Purchasers, without charge, within one business day of the date of the Offering Memorandum, such number of copies of the Offering Memorandum as may then be amended or supplemented as they may reasonably request.
(b) Prior to the sale of Notes may commenceand Guarantees hereunder, each of the Issuer and the Guarantors will use its best efforts to cause such post-effective amendment to become effective as soon as possible prepare the Offering Memorandum in a form approved by the Initial Purchasers and will advise not make any amendment or supplement to the Representatives promptly and, if requested by Pricing Disclosure Package or to the Representatives, will confirm such advice in writing, immediately Offering Memorandum of which the Initial Purchasers shall not previously have been advised and to which they shall reasonably object after such post-effective amendment has become effectivebeing so advised.
(bc) The Issuer and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to the filing completion of the Prospectus pursuant distribution of the Notes by the Initial Purchasers to Rule 424(b)Eligible Purchasers, any event occurs as a result or information becomes known that, in the judgment of which the Issuer or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package would (x) or the Offering Memorandum so that the Pricing Disclosure Package or the Offering Memorandum, as then amended or supplemented, does not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing, not misleading or (y) conflict with the information contained in the Registration Statement, the Issuer and the Guarantors will (i) notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement, omission or conflicting information; and (iii) supply any amendment or supplement to the Representatives in such quantities as may be reasonably requested.
(c) The Issuer and the Guarantors will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing: (i) of any review, issuance of comments or request by the Commission or its staff on or for an amendment of or a supplement to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information regarding the Issuer, the Guarantors, their respective affiliates or any filings with the Commission, whether or not such filings are incorporated by reference into the Registration Statement, any Preliminary Prospectus or the Prospectus; (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Notes for offering or sale in any jurisdiction or the initiation of any proceeding for such purpose or any examination pursuant to Section 8(e) of the Act relating to the Registration Statement or Section 8A of the Act in connection with the offering of the Notes; (iii) of the receipt by the Issuer or any Guarantor of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose; and (iv) within the period of time referred to in the first sentence in subsection (f) below, of any change in the Issuer’s or any Guarantor’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which results in any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) being untrue or which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Issuer and the Guarantors will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
(d) On request, the Issuer and the Guarantors will furnish to the Representatives and counsel to the Underwriters, without charge: (i) one (1) signed copy of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits to the Registration Statement; (ii) such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto, but without exhibits, as the Representatives may request; (iii) such number of copies of the Incorporated Documents, without exhibits, as the Representatives may request; and (iv) one (1) copy of the exhibits to the Incorporated Documents.
(e) Neither the Issuer nor any Guarantor will file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in the first sentence in subsection (f) below, file any document which upon filing becomes an Incorporated Document, of which the Representatives shall not previously have been advised or to which, after the Representatives shall have received a copy of the document proposed to be filed, the Representatives shall reasonably object; and no such further document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Each of , or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Memorandum in order to comply with any law, the Issuer and the Guarantors will give the Representatives notice of its intention forthwith prepare an appropriate supplement or amendment thereto, and will, subject to make any other filing pursuant clause (b) above, expeditiously furnish to the Exchange Act from the Applicable Time to the Closing Time Initial Purchasers and will furnish the Representatives with copies of any such documents dealers a reasonable amount number of time prior to such proposed filingcopies thereof.
(fe) After the execution and delivery of this Agreement and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered (or in lieu thereof, the notice referred to in Rule 173(a)) in connection with sales by the Underwriters or any dealer (including circumstances where such requirement may be satisfied pursuant to Rule 172), each None of the Issuer and nor any Guarantor will make any offer to sell or solicitation of an offer to buy the Guarantors will file promptly all reports and any definitive proxy or information statements required to be filed by Notes that would constitute a Free Writing Offering Document without the Issuer or the Guarantors with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) prior consent of the Exchange Act and will expeditiously deliver to the Underwriters and each dealerRepresentative, without charge, as many copies which consent shall not be unreasonably withheld or delayed. If at any time following issuance of the Prospectus (and of any amendment or supplement thereto), any Preliminary Prospectus and any Issuer a Free Writing Prospectus as each Underwriter may request. Each of the Issuer and the Guarantors consents to the use of the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or blue sky laws of the jurisdictions in which the Notes are offered by the Underwriters and by all dealers to whom Notes may be sold, both in connection with the offering and sale of the Notes and for such period of time thereafter as the Prospectus is required by the Act to be delivered (or in lieu thereof, the notice referred to in Rule 173(a)) in connection with sales by the Underwriters or any dealers. If during such period of time: (i) Offering Document any event shall occur occurred or occurs as a result of which, which such Free Writing Offering Document conflicts with the information in the judgment of Preliminary Offering Memorandum, the Issuer and Pricing Disclosure Package or the GuarantorsOffering Memorandum or, or when taken together with the information in the opinion of counsel for the UnderwritersPreliminary Offering Memorandum, the Prospectus as supplemented would include Pricing Disclosure Package or the Offering Memorandum, includes an untrue statement of a material fact or omit omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserthen prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Issuer will give notice thereof to the Initial Purchasers through the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; or provided that in connection therewith the Issuer shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) if file a general consent to service of process in any such jurisdiction, or (iii) subject itself to taxation in any jurisdiction in which it is necessary to supplement would not otherwise be subject.
(g) For a period commencing on the Prospectus or amend date hereof and ending on the Registration Statement (or to file under 60th day after the Exchange Act any document which, upon filing, would become an Incorporated Document) in order to comply with date of the Act, the Exchange Act or any other lawOffering Memorandum, the Issuer and the Guarantors will promptly notify agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the Representatives disposition by any person at any time in the future of) any debt securities of such event and forthwith prepare and, subject the Company or the Issuer substantially similar to the provisions Notes or securities convertible into or exchangeable for such debt securities of paragraph (e) above, file with the Commission an appropriate supplement Company or amendment thereto (or to such document), and will expeditiously furnish to the Underwriters and dealers a reasonable number of copies thereof. In the event that the Issuer and the Representatives agree that the Prospectus should be amended or supplemented, the Issuer, if requested by or sell or grant options, rights or warrants with respect to such debt securities of the RepresentativesCompany or the Issuer or securities convertible into or exchangeable for such debt securities of the Company or the Issuer, will promptly issue a press release announcing (ii) enter into any swap or disclosing other derivatives transaction that transfers to another, in whole or in part, any of the matters economic benefits or risks of ownership of such debt securities of the Company or the Issuer (other than any swap or derivative transaction with respect to the Notes), whether any such transaction described in clause (i) or (ii) above is to be covered settled by delivery of debt securities of the proposed amendment Company or supplementthe Issuer or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company or the Issuer substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or the Issuer, or (iv) publicly announce an offering of any debt securities of the Company or the Issuer substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Deutsche Bank Securities Inc., on behalf of the Initial Purchasers, except in exchange for the Exchange Notes and the Exchange Guarantees in connection with the Exchange Offer.
(gh) Each So long as any of the Notes are outstanding, the Issuer and the Guarantors will: (i) cooperate with , furnish at their expense to the Underwriters and their counsel in connection with Initial Purchasers, and, upon request, to the registration or qualification holders of the Notes for offering and sale prospective purchasers of the Notes the information required by the Underwriters and by dealers Rule 144A(d)(4) under the securities or blue sky laws of Securities Act (if any) unless such jurisdictions as the Underwriters may designate; (ii) maintain such qualifications in effect so long as required for the distribution of the Notes; and (iii) file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided that in no event shall the Issuer or any Guarantor be obligated to qualify to do business in any jurisdiction where it information is not now so qualified or to take any action which would subject it to service of process in suits, other than those arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject.
(h) Unless the Issuer or the Guarantors have or shall have obtained the prior written consent of the Representatives, each of the Issuer and the Guarantors has not made and will not make any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Issuer or the Guarantors with the Commission or retained by the Issuer or the Guarantors under Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses listed in Schedule II hereto and any electronic road show. Any such free writing prospectus consented to by the Representatives or the Issuer and the Guarantors is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Issuer and the Guarantors agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keepingpublicly available.
(i) The Issuer and the Guarantors will make generally available to its security holders and to the Underwriters as soon as practicable, but in no event later than fifteen (15) months after the end of the Parent’s current fiscal quarter, a consolidated earnings statement of the Parent, which need not be audited, covering a 12-month period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158.
(j) During the period commencing on the date hereof and ending on the date occurring three (3) years hereafter, the Issuer and the Guarantors will furnish to the Underwriters: (i) as soon as available, if requested, a copy of each report of the Parent mailed to stockholders or filed with the Commission that is not publicly available on EXXXX or the Parent’s website; and (ii) from time to time such other information concerning the Issuer or the Guarantors as the Representatives may reasonably request.
(k) The Issuer and the Guarantors shall reimburse the Underwriters for reasonable out-of-pocket expenses (including the reasonable fees and expenses of counsel for the Underwriters) incurred by the Underwriters in connection herewith if this Agreement is terminated pursuant to any provisions hereof or if this Agreement is terminated by the Representatives because of any inability, failure or refusal on the part of the Issuer or the Guarantors to comply with the terms or fulfill any of the conditions of this Agreement.
(l) The Issuer will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the manner specified in the Registration Statement, the Pricing Disclosure Package and the Prospectus Offering Memorandum under the heading caption “Use of Proceeds.”
(mj) If The Issuer and the Guarantors agree not to solicit any offer to buy or sell the Notes by means of any form of general solicitation or general advertising (as those terms are defined in Regulation D under the Securities Act), or by means of any directed selling efforts (as defined in Rule 430A, 430B or 430C is employed, 902 under the Issuer will timely file Securities Act and the Prospectus Commission’s Release No. 33-6863) in the United States in connection with any Notes being offered and sold pursuant to Rule 424(b) and will advise Regulation S under the Representatives of the time and manner of such filingSecurities Act.
(nk) Neither The Issuer, the Issuer nor any affiliate of the Issuer has taken, nor Guarantors and their respective affiliates will the Issuer or any affiliate of the Issuer not take, directly or indirectly, any action designed to, to or that might has constituted or that reasonably could be expected to cause or result in, under in the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Issuer or the Guarantors in connection with the offering of the Notes.
(l) The Issuer and the Guarantors will use their reasonable best efforts to facilitate permit the Notes to be eligible for clearance and settlement through DTC.
(m) The Issuer and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Issuer, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(n) The Issuer and the Guarantors agree not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would be integrated with the sale of the Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or resale the Eligible Purchasers of the Notes.
(o) The Parent will use its best efforts to continue to qualify as a real estate investment trust (a “REIT”) under the Internal Revenue Code of 1986, as amended, Issuer and the regulations Guarantors agree to comply with all the terms and published interpretations thereunder (collectively, conditions of the “Code”), so long as its Board of Directors deems it Registration Rights Agreement and all agreements set forth in the best interest of the Parent’s stockholders to remain so qualified.
(p) Each representation letters of the Issuer and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(p) The Issuer will use all reasonable best efforts indemnify and hold harmless the Initial Purchasers in their capacities as such against any documentary, stamp or similar issuance tax, including any interest and penalties imposed thereon, on the creation, issuance and sale of the Notes and on the execution and delivery of this Agreement. All payments to be made by the Issuer hereunder shall be made without any withholding or deduction from or through which payment is made for or on account of any present or future taxes, duties or governmental charges whatsoever unless the Issuer is compelled by law to deduct or withhold such taxes, duties or charges. In that event, the Issuer shall pay such additional amounts as may be necessary in order that the net amounts received after such withholding or deduction shall equal the amounts that would have been received if no withholding or deduction had been made.
(q) The Issuer and the Guarantors will do or and perform all things required or necessary to be done or and performed under this Agreement by the Issuer and the Guarantors them prior to the Closing Date Date, and to satisfy all conditions precedent to the delivery of Initial Purchasers’ obligations hereunder to purchase the Notes pursuant to this AgreementNotes.
(q) Neither the Issuer nor the Guarantors will, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge or otherwise dispose of or enter into any transaction that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Issuer or the Guarantors or any affiliate of the Issuer or the Guarantors, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position (within the meaning of Section 16 of the Exchange Act), on any debt securities or guarantees thereon (other than the Notes and the Guarantees); or publicly announce an intention to effect any such transaction, until after the Closing Date.
(r) Each of the Issuer and the Guarantors will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Sxxxxxxx-Xxxxx Act of 2002 (the “Sxxxxxxx-Xxxxx Act”), and will use its reasonable best efforts to cause its directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sxxxxxxx-Xxxxx Act.
(s) The Issuer and the Guarantors will file any Issuer Free Writing Prospectus to the extent required by Rule 433 within the time period required by such rule. The Issuer will retain, pursuant to reasonable procedures developed in good faith, copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433(g).
Appears in 1 contract
Samples: Purchase Agreement (Cott Corp /Cn/)
Agreements of the Issuer and the Guarantors. The Issuer and the Guarantors, jointly and severally, agree with each Underwriter as follows:
(a) If, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Notes may commence, each of the Issuer and the Guarantors will use its best efforts to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, immediately after such post-effective amendment has become effective.
(b) If, at any time prior to the filing of the Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would (x) include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing, not misleading or (y) conflict with the information contained in the Registration Statement, the Issuer and the Guarantors will (i) notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement, omission or conflicting information; and (iii) supply any amendment or supplement to the Representatives in such quantities as may be reasonably requested.
(c) The Issuer and the Guarantors will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing: (i) of any review, issuance of comments or request by the Commission or its staff on or for an amendment of or a supplement to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information regarding the Issuer, the Guarantors, their respective affiliates or any filings with the Commission, whether or not such filings are incorporated by reference into the Registration Statement, any Preliminary Prospectus or the Prospectus; (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Notes for offering or sale in any jurisdiction or the initiation of any proceeding for such purpose or any examination pursuant to Section 8(e) of the Act relating to the Registration Statement or Section 8A of the Act in connection with the offering of the Notes; (iii) of the receipt by the Issuer or any Guarantor of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose; and (iv) within the period of time referred to in the first sentence in subsection (f) below, of any change in the Issuer’s or any Guarantor’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which results in any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) being untrue or which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Issuer and the Guarantors will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
(d) On request, the Issuer and the Guarantors will furnish to the Representatives and counsel to the Underwriters, without charge: (i) one (1) signed copy of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits to the Registration Statement; (ii) such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto, but without exhibits, as the Representatives may request; (iii) such number of copies of the Incorporated Documents, without exhibits, as the Representatives may request; and (iv) one (1) copy of the exhibits to the Incorporated Documents.
(e) Neither the Issuer nor any Guarantor will file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in the first sentence in subsection (f) below, file any document which upon filing becomes an Incorporated Document, of which the Representatives shall not previously have been advised or to which, after the Representatives shall have received a copy of the document proposed to be filed, the Representatives shall reasonably object; and no such further document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of the Issuer and the Guarantors will give the Representatives notice of its intention to make any other filing pursuant to the Exchange Act from the Applicable Time to the Closing Time and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing.
(f) After the execution and delivery of this Agreement and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered (or in lieu thereof, the notice referred to in Rule 173(a)) in connection with sales by the Underwriters or any dealer (including circumstances where such requirement may be satisfied pursuant to Rule 172), each of the Issuer and the Guarantors will file promptly all reports and any definitive proxy or information statements required to be filed by the Issuer or the Guarantors with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act and will expeditiously deliver to the Underwriters and each dealer, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto), any Preliminary Prospectus and any Issuer Free Writing Prospectus as each Underwriter may request. Each of the Issuer and the Guarantors consents to the use of the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or blue sky laws of the jurisdictions in which the Notes are offered by the Underwriters and by all dealers to whom Notes may be sold, both in connection with the offering and sale of the Notes and for such period of time thereafter as the Prospectus is required by the Act to be delivered (or in lieu thereof, the notice referred to in Rule 173(a)) in connection with sales by the Underwriters or any dealers. If during such period of time: (i) any event shall occur as a result of which, in the judgment of the Issuer and the Guarantors, or in the opinion of counsel for the Underwriters, the Prospectus as supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading; or (ii) if it is necessary to supplement the Prospectus or amend the Registration Statement (or to file under the Exchange Act any document which, upon filing, would become an Incorporated Document) in order to comply with the Act, the Exchange Act or any other law, the Issuer and the Guarantors will promptly notify the Representatives of such event and forthwith prepare and, subject to the provisions of paragraph (e) above, file with the Commission an appropriate supplement or amendment thereto (or to such document), and will expeditiously furnish to the Underwriters and dealers a reasonable number of copies thereof. In the event that the Issuer and the Representatives agree that the Prospectus should be amended or supplemented, the Issuer, if requested by the Representatives, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplement.
(g) Each of the Issuer and the Guarantors will: (i) cooperate with the Underwriters and their counsel in connection with the registration or qualification of the Notes for offering and sale by the Underwriters and by dealers under the securities or blue sky laws of such jurisdictions as the Underwriters may designate; (ii) maintain such qualifications in effect so long as required for the distribution of the Notes; and (iii) file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided that in no event shall the Issuer or any Guarantor be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than those arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject.
(h) Unless the Issuer or the Guarantors have or shall have obtained the prior written consent of the Representatives, each of the Issuer and the Guarantors has not made and will not make any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Issuer or the Guarantors with the Commission or retained by the Issuer or the Guarantors under Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses listed in Schedule II hereto and any electronic road show. Any such free writing prospectus consented to by the Representatives or the Issuer and the Guarantors is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Issuer and the Guarantors agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Issuer and the Guarantors will make generally available to its security holders and to the Underwriters as soon as practicable, but in no event later than fifteen (15) months after the end of the Parent’s current fiscal quarter, a consolidated earnings statement of the Parent, which need not be audited, covering a 12-month period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158.
(j) During the period commencing on the date hereof and ending on the date occurring three (3) years hereafter, the Issuer and the Guarantors will furnish to the Underwriters: (i) as soon as available, if requested, a copy of each report of the Parent mailed to stockholders or filed with the Commission that is not publicly available on EXXXX XXXXX or the Parent’s website; and (ii) from time to time such other information concerning the Issuer or the Guarantors as the Representatives may reasonably request.
(k) The Issuer and the Guarantors shall reimburse the Underwriters for accountable, reasonable out-of-pocket expenses (including the reasonable fees and expenses of counsel for the Underwriters) actually incurred by the Underwriters in connection herewith if this Agreement is terminated pursuant to any provisions hereof or if this Agreement is terminated by the Representatives because of any inability, failure or refusal on the part of the Issuer or the Guarantors to comply with the terms or fulfill any of the conditions of this Agreement.
(l) The Issuer will apply the net proceeds from the sale of the Notes in the manner specified in the Registration Statement, the Disclosure Package and the Prospectus under the heading “Use of Proceeds.”
(m) If Rule 430A, 430B or 430C is employed, the Issuer will timely file the Prospectus pursuant to Rule 424(b) and will advise the Representatives of the time and manner of such filing.
(n) Neither the Issuer nor any affiliate of the Issuer has taken, nor will the Issuer or any affiliate of the Issuer take, directly or indirectly, any action designed to, or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Issuer to facilitate the sale or resale of the Notes.
(o) The Parent will use its best efforts to continue to qualify as a real estate investment trust (a “REIT”) under the Internal Revenue Code of 1986, as amended, and the regulations and published interpretations thereunder (collectively, the “Code”), so long as its Board of Directors deems it in the best interest of the Parent’s stockholders to remain so qualified.
(p) Each of the Issuer and the Guarantors will use all reasonable best efforts to do or perform all things required to be done or performed by the Issuer and the Guarantors prior to the Closing Date to satisfy all conditions precedent to the delivery of the Notes pursuant to this Agreement.
(q) Neither the Issuer nor the Guarantors will, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge or otherwise dispose of or enter into any transaction that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Issuer or the Guarantors or any affiliate of the Issuer or the Guarantors, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position (within the meaning of Section 16 of the Exchange Act), on any debt securities or guarantees thereon (other than the Notes and the Guarantees); or publicly announce an intention to effect any such transaction, until after the Closing Date.
(r) Each of the Issuer and the Guarantors will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the SxxxxxxxXxxxxxxx-Xxxxx Act of 2002 (the “SxxxxxxxXxxxxxxx-Xxxxx Act”), and will use its reasonable best efforts to cause its directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the SxxxxxxxXxxxxxxx-Xxxxx Act.
(s) The Issuer and the Guarantors will file any Issuer Free Writing Prospectus to the extent required by Rule 433 within the time period required by such rule. The Issuer will retain, pursuant to reasonable procedures developed in good faith, copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433(g).
Appears in 1 contract
Agreements of the Issuer and the Guarantors. The Issuer agrees and, upon the execution and delivery of the Joinder Agreement, the Guarantors, jointly and severally, agree with each Underwriter of the Initial Purchasers as follows:
(a) If, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Notes may commence, each of the Issuer and the Guarantors will use its best efforts to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, immediately after such post-effective amendment has become effective.
(b) If, at any time prior to the filing of the Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would (x) include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing, not misleading or (y) conflict with the information contained in the Registration Statement, the Issuer and the Guarantors will (i) notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement, omission or conflicting information; and (iii) supply any amendment or supplement to the Representatives in such quantities as may be reasonably requested.
(c) The Issuer and the Guarantors will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing: (i) of any review, issuance of comments or request by the Commission or its staff on or for an amendment of or a supplement to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information regarding the Issuer, the Guarantors, their respective affiliates or any filings with the Commission, whether or not such filings are incorporated by reference into the Registration Statement, any Preliminary Prospectus or the Prospectus; (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Notes for offering or sale in any jurisdiction or the initiation of any proceeding for such purpose or any examination pursuant to Section 8(e) of the Act relating to the Registration Statement or Section 8A of the Act in connection with the offering of the Notes; (iii) of the receipt by the Issuer or any Guarantor of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose; and (iv) within the period of time referred to in the first sentence in subsection (f) below, of any change in the Issuer’s or any Guarantor’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which results in any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) being untrue or which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Issuer and the Guarantors will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
(d) On request, the Issuer and the Guarantors will furnish to the Representatives and counsel to the UnderwritersInitial Purchasers, without charge: (i) one (1) signed copy of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits to the Registration Statement; (ii) such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto, but without exhibits, as the Representatives may request; (iii) such number of copies of the Incorporated Documents, without exhibits, Final Offering Memorandum as the Representatives may then be amended or supplemented as they may reasonably request; and (iv) one (1) copy of the exhibits to the Incorporated Documents.
(eb) Neither The Issuer will prepare the Issuer nor any Guarantor Final Offering Memorandum in a form approved by the Representatives and will file any amendment to the Registration Statement or not make any amendment or supplement to the Prospectus or, prior Pricing Disclosure Package or to the end of the period of time referred to in the first sentence in subsection (f) below, file any document which upon filing becomes an Incorporated Document, Final Offering Memorandum of which the Representatives shall not previously have been advised or to which, which it shall reasonably object after the Representatives shall have received a copy being so advised.
(c) The Issuer and each of the document proposed Guarantors consents to the use of the Pricing Disclosure Package and the Final Offering Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be filedsold, in connection with the Representatives shall reasonably object; offering and no such further documentsale of the Notes.
(d) If, when it is filedat any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, will contain an any event occurs or information becomes known that, in the judgment of the Issuer or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package or the Final Offering Memorandum so that the Pricing Disclosure Package or the Final Offering Memorandum, as then amended or supplemented, does not include any untrue statement of a material fact fact, or will omit to state a material fact required to be stated therein or fact, necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Each of the Issuer and the Guarantors will give the Representatives notice of its intention to make any other filing pursuant to the Exchange Act from the Applicable Time to the Closing Time and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing.
(f) After the execution and delivery of this Agreement and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered (or in lieu thereof, the notice referred to in Rule 173(a)) in connection with sales by the Underwriters or any dealer (including circumstances where such requirement may be satisfied pursuant to Rule 172), each of the Issuer and the Guarantors will file promptly all reports and any definitive proxy or information statements required to be filed by the Issuer or the Guarantors with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act and will expeditiously deliver to the Underwriters and each dealer, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto), any Preliminary Prospectus and any Issuer Free Writing Prospectus as each Underwriter may request. Each of the Issuer and the Guarantors consents to the use of the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or blue sky laws of the jurisdictions in which the Notes are offered by the Underwriters and by all dealers to whom Notes may be sold, both in connection with the offering and sale of the Notes and for such period of time thereafter as the Prospectus is required by the Act to be delivered (or in lieu thereof, the notice referred to in Rule 173(a)) in connection with sales by the Underwriters or any dealers. If during such period of time: (i) any event shall occur as a result of which, in the judgment of the Issuer and the Guarantors, or in the opinion of counsel for the Underwriters, the Prospectus as supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading; or (ii) if it is necessary to supplement the Prospectus or amend the Registration Statement (Pricing Disclosure Package or to file under the Exchange Act any document which, upon filing, would become an Incorporated Document) Final Offering Memorandum in order to comply with the Act, the Exchange Act or any other law, the Issuer and the Guarantors will promptly notify the Representatives of such event and forthwith prepare and, subject to the provisions of paragraph (e) above, file with the Commission an appropriate supplement or amendment thereto (or to such document)thereto, and will expeditiously furnish to the Underwriters Initial Purchasers and dealers a reasonable number of copies thereof. In the event that the Issuer and the Representatives agree that the Prospectus should be amended or supplemented.
(e) None of Merger Sub, the Issuer, if requested by Company nor any Guarantor will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representatives, will promptly issue a press release announcing which consent shall not be unreasonably withheld or disclosing the matters to be covered by the proposed amendment or supplementdelayed.
(gf) Each of Promptly from time to time to take such action as the Issuer and the Guarantors will: Initial Purchasers may reasonably request to qualify or register (ior obtain exemptions from qualifying or registering) cooperate with the Underwriters and their counsel in connection with the registration or qualification of the Notes for offering and sale by the Underwriters and by dealers under the securities or blue sky Blue Sky laws of such jurisdictions as the Underwriters Initial Purchasers may designate; (ii) maintain request and to comply with such qualifications laws so as to permit the continuance of sales and dealings therein in effect so such jurisdictions for as long as required for may be necessary to complete the distribution of the Notes; and (iii) file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided that in no event shall connection therewith the Issuer or any Guarantor shall not be obligated required to (i) qualify to do business as a foreign corporation in any jurisdiction where in which it is would not now otherwise be required to so qualified or to take any action which would subject it qualify, (ii) file a general consent to service of process in suitsany such jurisdiction, other than those arising out of the offering or sale of the Notes, (iii) subject itself to taxation in any jurisdiction where in which it is would not now so otherwise be subject.
(hg) Unless the Issuer or the Guarantors have or shall have obtained the prior written consent of the Representatives, each of the Issuer and the Guarantors has not made and will not make any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute For a Free Writing Prospectus required to be filed by the Issuer or the Guarantors with the Commission or retained by the Issuer or the Guarantors under Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses listed in Schedule II hereto and any electronic road show. Any such free writing prospectus consented to by the Representatives or the Issuer and the Guarantors is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Issuer and the Guarantors agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Issuer and the Guarantors will make generally available to its security holders and to the Underwriters as soon as practicable, but in no event later than fifteen (15) months after the end of the Parent’s current fiscal quarter, a consolidated earnings statement of the Parent, which need not be audited, covering a 12-month period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158.
(j) During the period commencing on the date hereof and ending on the 90th day after the date occurring three (3) years hereafterof the Final Offering Memorandum, the Issuer and the Guarantors will furnish to the Underwriters: agree not to, directly or indirectly, (i) as soon as availableoffer for sale, if requestedsell, a copy or otherwise dispose of each report (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition by any person at any time in the future of) any capital markets debt securities of the Parent mailed Issuer substantially similar to stockholders the Notes or filed securities convertible into or exchangeable for such debt securities of the Issuer, or sell or grant options, rights or warrants with respect to such debt securities of the Commission that is not publicly available on EXXXX Issuer or securities convertible into or exchangeable for such debt securities of the Parent’s website; and Issuer, (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Issuer, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Issuer or other securities, in cash or otherwise or (iii) publicly announce an offering of any debt securities of the Issuer substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of Xxxxxxx Xxxxx and Xxxxxx Xxxxxxx, on behalf of the Initial Purchasers.
(h) So long as any of the Notes are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, unless they become subject to and comply with Section 13 or 15(d) of the Exchange Act or file the periodic reports contemplated by such provisions pursuant to the terms of the Indenture, provide or make available electronically to each holder of such restricted securities and to each prospective purchaser (as designated by such holder) of such restricted securities, upon the request of such holder or prospective purchaser, any information required to be provided by Rule 144A(d)(4) under the Securities Act (it being acknowledged and agreed that, prior to the first date on which information is required to be provided under the Indenture, the information contained in the Final Offering Memorandum is sufficient for this purpose and it being further agreed that delivery to the holders or prospective holders of the Notes of the information required to be delivered under the Indenture will be deemed to satisfy this requirement). This covenant is intended to be for the benefit of the holders, and the prospective purchasers designated by such holders, from time to time of such other information concerning the Issuer or the Guarantors as the Representatives may reasonably requestrestricted securities.
(k) The Issuer and the Guarantors shall reimburse the Underwriters for reasonable out-of-pocket expenses (including the reasonable fees and expenses of counsel for the Underwriters) incurred by the Underwriters in connection herewith if this Agreement is terminated pursuant to any provisions hereof or if this Agreement is terminated by the Representatives because of any inability, failure or refusal on the part of the Issuer or the Guarantors to comply with the terms or fulfill any of the conditions of this Agreement.
(li) The Issuer will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the manner specified in the Registration Statement, the Pricing Disclosure Package and the Prospectus Final Offering Memorandum under the heading caption “Use of Proceeds.”
(m) If Rule 430A, 430B or 430C is employed, the Issuer will timely file the Prospectus pursuant to Rule 424(b) and will advise the Representatives of the time and manner of such filing.
(n) Neither the Issuer nor any affiliate of the Issuer has taken, nor will the Issuer or any affiliate of the Issuer take, directly or indirectly, any action designed to, or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Issuer to facilitate the sale or resale of the Notes.
(oj) The Parent will use its best efforts to continue to qualify as a real estate investment trust (a “REIT”) under the Internal Revenue Code of 1986, as amended, and the regulations and published interpretations thereunder (collectively, the “Code”), so long as its Board of Directors deems it in the best interest of the Parent’s stockholders to remain so qualified.
(p) Each of the Issuer and the Guarantors will use all reasonable best efforts to do or perform all things required to be done or performed by the Issuer and the Guarantors prior to the Closing Date to satisfy all conditions precedent to the delivery of the Notes pursuant to this Agreement.
(q) Neither the Issuer nor the Guarantors will, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge or otherwise dispose of or enter into any transaction that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Issuer or the Guarantors or any affiliate of the Issuer or the Guarantors, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position (within the meaning of Section 16 of the Exchange Act), on any debt securities or guarantees thereon (other than the Notes and the Guarantees); or publicly announce an intention to effect any such transaction, until after the Closing Date.
(r) Each of the Issuer and the Guarantors will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Sxxxxxxx-Xxxxx Act of 2002 (the “Sxxxxxxx-Xxxxx Act”), and will use its reasonable best efforts to cause its directors permit the Notes to be eligible for clearance and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitationsettlement through DTC.
(k) During the period from the Closing Date until one year after the Closing Date, the provisions Issuer will not, and will not permit any of its subsidiaries to, resell any Notes that have been acquired by any of them except for Notes resold in a transaction registered under the Sxxxxxxx-Xxxxx Securities Act.
(sl) The Issuer shall and shall cause its affiliates to not seek the release of the Escrow Property from the Escrow Account unless such release is in compliance with the terms of the Indenture and the Escrow Agreement.
(m) The Issuer and its controlled affiliates will not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would be integrated with the sale of the Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes. The Issuer and the Guarantors will file take reasonable precautions designed to insure that any Issuer Free Writing Prospectus offer or sale, direct or indirect, in the United States or to any U.S. person (as defined in Rule 902 under the Securities Act), of any Notes or any substantially similar security issued by Merger Sub, the Company or any Guarantor, within six months subsequent to the extent required date on which the distribution of the Notes has been completed (as notified to the Issuer by Rule 433 within the time period required Initial Purchasers), is made under restrictions and other circumstances reasonably designed not to affect the status of the offer and sale of the Notes in the United States and to U.S. persons contemplated by such rule. The Issuer will retainthis Agreement as transactions exempt from the registration provisions of the Securities Act, including any sales pursuant to reasonable procedures developed Rule 144A under, or Regulations D or S of, the Securities Act.
(n) On the Merger Date, the Company and each Guarantor will (A) execute the Purchase Agreement Joinder, the Supplemental Indenture and the Registration Rights Agreement Joinder and (B) cause (i) Xxxxxxx Xxxxxxx & Xxxxxxxx LLP to furnish to the Initial Purchasers its written opinion (for the avoidance of doubt, without any negative assurance letter), as counsel to the Company and the Guarantors, addressed to the Initial Purchasers and dated the Merger Date, substantially in good faiththe form of Exhibit B hereto (with respect to those matters set forth therein that are contemplated to be given only on the Merger Date), copies and (ii) Xxxxx Xxxxxx to furnish to the Initial Purchasers his written opinion, as General Counsel of each Issuer Free Writing Prospectus that is not filed with the Commission Company, addressed to the Initial Purchasers and dated the Merger Date, substantially in accordance with Rule 433(g)the form of Exhibit C hereto.
Appears in 1 contract
Agreements of the Issuer and the Guarantors. The Issuer and the Guarantors, jointly and severally, agree with each Underwriter as follows:
(a) If, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Notes may commence, each of the Issuer and the Guarantors will use its best efforts to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, immediately after such post-effective amendment has become effective.
(b) If, at any time prior to the filing of the Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would (x) include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing, not misleading or (y) conflict with the information contained in the Registration Statement, the Issuer and the Guarantors will (i) notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement, omission or conflicting information; and (iii) supply any amendment or supplement to the Representatives in such quantities as may be reasonably requested.
(c) The Issuer and the Guarantors will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing: (i) of any review, issuance of comments or request by the Commission or its staff on or for an amendment of or a supplement to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information regarding the Issuer, the Guarantors, their respective affiliates or any filings with the Commission, whether or not such filings are incorporated by reference into the Registration Statement, any Preliminary Prospectus or the Prospectus; (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Notes for offering or sale in any jurisdiction or the initiation of any proceeding for such purpose or any examination pursuant to Section 8(e) of the Act relating to the Registration Statement or Section 8A of the Act in connection with the offering of the Notes; (iii) of the receipt by the Issuer or any Guarantor of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose; and (iv) within the period of time referred to in the first sentence in subsection (f) below, of any change in the Issuer’s or any Guarantor’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which results in any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) being untrue or which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Issuer and the Guarantors will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
(d) On request, the Issuer and the Guarantors will furnish to the Representatives and counsel to the Underwriters, without charge: (i) one (1) signed copy of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits to the Registration Statement; (ii) such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto, but without exhibits, as the Representatives may request; (iii) such number of copies of the Incorporated Documents, without exhibits, as the Representatives may request; and (iv) one (1) copy of the exhibits to the Incorporated Documents.
(e) Neither the Issuer nor any Guarantor will file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in the first sentence in subsection (f) below, file any document which upon filing becomes an Incorporated Document, of which the Representatives shall not previously have been advised or to which, after the Representatives shall have received a copy of the document proposed to be filed, the Representatives shall reasonably object; and no such further document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of the Issuer and the Guarantors will give the Representatives notice of its intention to make any other filing pursuant to the Exchange Act from the Applicable Time to the Closing Time and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing.
(f) After the execution and delivery of this Agreement and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered (or in lieu thereof, the notice referred to in Rule 173(a)) in connection with sales by the Underwriters or any dealer (including circumstances where such requirement may be satisfied pursuant to Rule 172), each of the Issuer and the Guarantors will file promptly all reports and any definitive proxy or information statements required to be filed by the Issuer or the Guarantors with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act and will expeditiously deliver to the Underwriters and each dealer, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto), any Preliminary Prospectus and any Issuer Free Writing Prospectus as each Underwriter may request. Each of the Issuer and the Guarantors consents to the use of the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or blue sky laws of the jurisdictions in which the Notes are offered by the Underwriters and by all dealers to whom Notes may be sold, both in connection with the offering and sale of the Notes and for such period of time thereafter as the Prospectus is required by the Act to be delivered (or in lieu thereof, the notice referred to in Rule 173(a)) in connection with sales by the Underwriters or any dealers. If during such period of time: (i) any event shall occur as a result of which, in the judgment of the Issuer and the Guarantors, or in the opinion of counsel for the Underwriters, the Prospectus as supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading; or (ii) if it is necessary to supplement the Prospectus or amend the Registration Statement (or to file under the Exchange Act any document which, upon filing, would become an Incorporated Document) in order to comply with the Act, the Exchange Act or any other law, the Issuer and the Guarantors will promptly notify the Representatives of such event and forthwith prepare and, subject to the provisions of paragraph (e) above, file with the Commission an appropriate supplement or amendment thereto (or to such document), and will expeditiously furnish to the Underwriters and dealers a reasonable number of copies thereof. In the event that the Issuer and the Representatives agree that the Prospectus should be amended or supplemented, the Issuer, if requested by the Representatives, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplement.
(g) Each of the Issuer and the Guarantors will: (i) cooperate with the Underwriters and their counsel in connection with the registration or qualification of the Notes for offering and sale by the Underwriters and by dealers under the securities or blue sky laws of such jurisdictions as the Underwriters may designate; (ii) maintain such qualifications in effect so long as required for the distribution of the Notes; and (iii) file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided that in no event shall the Issuer or any Guarantor be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than those arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject.
(h) Unless the Issuer or the Guarantors have or shall have obtained the prior written consent of the Representatives, each of the Issuer and the Guarantors has not made and will not make any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Issuer or the Guarantors with the Commission or retained by the Issuer or the Guarantors under Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses listed in Schedule II hereto and any electronic road show. Any such free writing prospectus consented to by the Representatives or the Issuer and the Guarantors is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Issuer and the Guarantors agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Issuer and the Guarantors will make generally available to its security holders and to the Underwriters as soon as practicable, but in no event later than fifteen (15) months after the end of the Parent’s current fiscal quarter, a consolidated earnings statement of the Parent, which need not be audited, covering a 12-month period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158.
(j) During the period commencing on the date hereof and ending on the date occurring three (3) years hereafter, the Issuer and the Guarantors will furnish to the Underwriters: (i) as soon as available, if requested, a copy of each report of the Parent mailed to stockholders or filed with the Commission that is not publicly available on EXXXX or the Parent’s website; and (ii) from time to time such other information concerning the Issuer or the Guarantors as the Representatives may reasonably request.
(k) The Issuer and the Guarantors shall reimburse the Underwriters for accountable, reasonable out-of-pocket expenses (including the reasonable fees and expenses of counsel for the Underwriters) actually incurred by the Underwriters in connection herewith if this Agreement is terminated pursuant to any provisions hereof or if this Agreement is terminated by the Representatives because of any inability, failure or refusal on the part of the Issuer or the Guarantors to comply with the terms or fulfill any of the conditions of this Agreement.
(l) The Issuer will apply the net proceeds from the sale of the Notes in the manner specified in the Registration Statement, the Disclosure Package and the Prospectus under the heading “Use of Proceeds.”
(m) If Rule 430A, 430B or 430C is employed, the Issuer will timely file the Prospectus pursuant to Rule 424(b) and will advise the Representatives of the time and manner of such filing.
(n) Neither the Issuer nor any affiliate of the Issuer has taken, nor will the Issuer or any affiliate of the Issuer take, directly or indirectly, any action designed to, or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Issuer to facilitate the sale or resale of the Notes.
(o) The Parent will use its best efforts to continue to qualify as a real estate investment trust (a “REIT”) under the Internal Revenue Code of 1986, as amended, and the regulations and published interpretations thereunder (collectively, the “Code”), so long as its Board of Directors deems it in the best interest of the Parent’s stockholders to remain so qualified.
(p) Each of the Issuer and the Guarantors will use all reasonable best efforts to do or perform all things required to be done or performed by the Issuer and the Guarantors prior to the Closing Date to satisfy all conditions precedent to the delivery of the Notes pursuant to this Agreement.
(q) Neither the Issuer nor the Guarantors will, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge or otherwise dispose of or enter into any transaction that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Issuer or the Guarantors or any affiliate of the Issuer or the Guarantors, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position (within the meaning of Section 16 of the Exchange Act), on any debt securities or guarantees thereon (other than the Notes and the Guarantees); or publicly announce an intention to effect any such transaction, until after the Closing Date.
(r) Each of the Issuer and the Guarantors will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Sxxxxxxx-Xxxxx Act of 2002 (the “Sxxxxxxx-Xxxxx Act”), and will use its reasonable best efforts to cause its directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sxxxxxxx-Xxxxx Act.
(s) The Issuer and the Guarantors will file any Issuer Free Writing Prospectus to the extent required by Rule 433 within the time period required by such rule. The Issuer will retain, pursuant to reasonable procedures developed in good faith, copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433(g).
Appears in 1 contract
Agreements of the Issuer and the Guarantors. The Issuer and the Guarantors, jointly and severally, agree with each Underwriter of the Initial Purchasers as follows:
(a) If, at The Issuer and the time this Agreement is executed and delivered, it is necessary for a post-effective amendment Guarantors will furnish to the Registration Statement to be declared effective before the offering Initial Purchasers, without charge, within one business day of the date of the Offering Memorandum, such number of copies of the Offering Memorandum as may then be amended or supplemented as they may reasonably request.
(b) Prior to the sale of Notes may commenceand Guarantees hereunder, each of the Issuer and the Guarantors will use its best efforts to cause such post-effective amendment to become effective as soon as possible prepare the Offering Memorandum in a form approved by the Initial Purchasers and will advise not make any amendment or supplement to the Representatives promptly and, if requested by Pricing Disclosure Package or to the Representatives, will confirm such advice in writing, immediately Offering Memorandum of which the Initial Purchasers shall not previously have been advised and to which they shall reasonably object after such post-effective amendment has become effectivebeing so advised.
(bc) The Issuer and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to the filing completion of the Prospectus pursuant distribution of the Notes by the Initial Purchasers to Rule 424(b)Eligible Purchasers, any event occurs as a result or information becomes known that, in the judgment of which the Issuer or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package would (x) or the Offering Memorandum so that the Pricing Disclosure Package or the Offering Memorandum, as then amended or supplemented, does not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing, not misleading or (y) conflict with the information contained in the Registration Statement, the Issuer and the Guarantors will (i) notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement, omission or conflicting information; and (iii) supply any amendment or supplement to the Representatives in such quantities as may be reasonably requested.
(c) The Issuer and the Guarantors will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing: (i) of any review, issuance of comments or request by the Commission or its staff on or for an amendment of or a supplement to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information regarding the Issuer, the Guarantors, their respective affiliates or any filings with the Commission, whether or not such filings are incorporated by reference into the Registration Statement, any Preliminary Prospectus or the Prospectus; (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Notes for offering or sale in any jurisdiction or the initiation of any proceeding for such purpose or any examination pursuant to Section 8(e) of the Act relating to the Registration Statement or Section 8A of the Act in connection with the offering of the Notes; (iii) of the receipt by the Issuer or any Guarantor of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose; and (iv) within the period of time referred to in the first sentence in subsection (f) below, of any change in the Issuer’s or any Guarantor’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which results in any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) being untrue or which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Issuer and the Guarantors will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
(d) On request, the Issuer and the Guarantors will furnish to the Representatives and counsel to the Underwriters, without charge: (i) one (1) signed copy of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits to the Registration Statement; (ii) such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto, but without exhibits, as the Representatives may request; (iii) such number of copies of the Incorporated Documents, without exhibits, as the Representatives may request; and (iv) one (1) copy of the exhibits to the Incorporated Documents.
(e) Neither the Issuer nor any Guarantor will file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in the first sentence in subsection (f) below, file any document which upon filing becomes an Incorporated Document, of which the Representatives shall not previously have been advised or to which, after the Representatives shall have received a copy of the document proposed to be filed, the Representatives shall reasonably object; and no such further document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Each of , or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Memorandum in order to comply with any law, the Issuer and the Guarantors will give the Representatives notice of its intention forthwith prepare an appropriate supplement or amendment thereto, and will, subject to make any other filing pursuant clause (b) above, expeditiously furnish to the Exchange Act from the Applicable Time to the Closing Time Initial Purchasers and will furnish the Representatives with copies of any such documents dealers a reasonable amount number of time prior to such proposed filingcopies thereof.
(fe) After the execution and delivery of this Agreement and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered (or in lieu thereof, the notice referred to in Rule 173(a)) in connection with sales by the Underwriters or any dealer (including circumstances where such requirement may be satisfied pursuant to Rule 172), each None of the Issuer and nor any Guarantor will make any offer to sell or solicitation of an offer to buy the Guarantors will file promptly all reports and any definitive proxy or information statements required to be filed by Notes that would constitute a Free Writing Offering Document without the Issuer or the Guarantors with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) prior consent of the Exchange Act and will expeditiously deliver to the Underwriters and each dealerRepresentatives, without charge, as many copies which consent shall not be unreasonably withheld or delayed. If at any time following issuance of the Prospectus (and of any amendment or supplement thereto), any Preliminary Prospectus and any Issuer a Free Writing Prospectus as each Underwriter may request. Each of the Issuer and the Guarantors consents to the use of the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or blue sky laws of the jurisdictions in which the Notes are offered by the Underwriters and by all dealers to whom Notes may be sold, both in connection with the offering and sale of the Notes and for such period of time thereafter as the Prospectus is required by the Act to be delivered (or in lieu thereof, the notice referred to in Rule 173(a)) in connection with sales by the Underwriters or any dealers. If during such period of time: (i) Offering Document any event shall occur occurred or occurs as a result of which, which such Free Writing Offering Document conflicts with the information in the judgment of Preliminary Offering Memorandum, the Issuer and Pricing Disclosure Package or the GuarantorsOffering Memorandum or, or when taken together with the information in the opinion of counsel for the UnderwritersPreliminary Offering Memorandum, the Prospectus as supplemented would include Pricing Disclosure Package or the Offering Memorandum, includes an untrue statement of a material fact or omit omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserthen prevailing, not misleading; or (ii) if it is necessary to supplement the Prospectus or amend the Registration Statement (or to file under the Exchange Act any document which, upon filing, would become an Incorporated Document) in order to comply with the Act, the Exchange Act or any other lawas promptly as practicable after becoming aware thereof, the Issuer and will give notice thereof to the Guarantors will promptly notify Initial Purchasers through the Representatives of such event and forthwith prepare and, subject to the provisions of paragraph (e) above, file with the Commission an appropriate supplement or amendment thereto (or to such document), and will expeditiously furnish to the Underwriters and dealers a reasonable number of copies thereof. In the event that the Issuer and the Representatives agree that the Prospectus should be amended or supplemented, the Issuer, if requested by the Representatives, will promptly issue prepare and furnish without charge to each Initial Purchaser a press release announcing Free Writing Offering Document or disclosing the matters to be covered by the proposed amendment other document which will correct such conflict, statement or supplementomission.
(gf) Each of Promptly from time to time to take such action as the Issuer and the Guarantors will: (i) cooperate with the Underwriters and their counsel in connection with the registration or qualification of Initial Purchasers may reasonably request to qualify the Notes for offering and sale by the Underwriters and by dealers under the securities or blue sky Blue Sky laws of such jurisdictions as the Underwriters Initial Purchasers may designate; (ii) maintain request and to comply with such qualifications laws so as to permit the continuance of sales and dealings therein in effect so such jurisdictions for as long as required for may be necessary to complete the distribution of the Notes; and (iii) file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided that in no event shall connection therewith the Issuer or any Guarantor shall not be obligated required to (i) qualify to do business as a foreign corporation in any jurisdiction where in which it is would not now otherwise be required to so qualified or to take any action which would subject it qualify, (ii) file a general consent to service of process in suitsany such jurisdiction, other than those arising out of the offering or sale of the Notes, (iii) subject itself to taxation in any jurisdiction where in which it is would not now so otherwise be subject.
(hg) Unless For a period commencing on the date hereof and ending on the 60th day after the date of the Offering Memorandum, the Issuer and the Guarantors agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition by any person at any time in the future of) any debt securities of the Company or the Issuer substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company or the Issuer, or sell or grant options, rights or warrants with respect to such debt securities of the Company or the Issuer or securities convertible into or exchangeable for such debt securities of the Guarantors have Company or shall have obtained the Issuer, (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Company or the Issuer (other than any swap or derivative transaction with respect to the Notes), whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company or the Issuer or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company or the Issuer substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or the Issuer, or (iv) publicly announce an offering of any debt securities of the Company or the Issuer substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representatives, each on behalf of the Initial Purchasers, except in exchange for the Exchange Notes and the Exchange Guarantees in connection with the Exchange Offer.
(h) So long as any of the Notes are outstanding, the Issuer and the Guarantors has not made and will not make any offer relating will, furnish at their expense to the Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required Initial Purchasers, and, upon request, to be filed by the Issuer or the Guarantors with the Commission or retained by the Issuer or the Guarantors under Rule 433; provided that the prior written consent holders of the parties hereto shall be deemed to have been given in respect Notes and prospective purchasers of the Free Writing Prospectuses listed in Schedule II hereto and any electronic road show. Any Notes the information required by Rule 144A(d)(4) under the Securities Act (if any) unless such free writing prospectus consented to by the Representatives or the Issuer and the Guarantors information is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Issuer and the Guarantors agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keepingpublicly available.
(i) The Issuer and the Guarantors will make generally available to its security holders and to the Underwriters as soon as practicable, but in no event later than fifteen (15) months after the end of the Parent’s current fiscal quarter, a consolidated earnings statement of the Parent, which need not be audited, covering a 12-month period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158.
(j) During the period commencing on the date hereof and ending on the date occurring three (3) years hereafter, the Issuer and the Guarantors will furnish to the Underwriters: (i) as soon as available, if requested, a copy of each report of the Parent mailed to stockholders or filed with the Commission that is not publicly available on EXXXX or the Parent’s website; and (ii) from time to time such other information concerning the Issuer or the Guarantors as the Representatives may reasonably request.
(k) The Issuer and the Guarantors shall reimburse the Underwriters for reasonable out-of-pocket expenses (including the reasonable fees and expenses of counsel for the Underwriters) incurred by the Underwriters in connection herewith if this Agreement is terminated pursuant to any provisions hereof or if this Agreement is terminated by the Representatives because of any inability, failure or refusal on the part of the Issuer or the Guarantors to comply with the terms or fulfill any of the conditions of this Agreement.
(l) The Issuer will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the manner specified in the Registration Statement, the Pricing Disclosure Package and the Prospectus Offering Memorandum under the heading caption “Use of Proceeds.”
(mj) If The Issuer and the Guarantors agree not to solicit any offer to buy or sell the Notes by means of any form of general solicitation or general advertising (as those terms are defined in Regulation D under the Securities Act), or by means of any directed selling efforts (as defined in Rule 430A, 430B or 430C is employed, 902 under the Issuer will timely file Securities Act and the Prospectus Commission’s Release No. 33-6863) in the United States in connection with any Notes being offered and sold pursuant to Rule 424(b) and will advise Regulation S under the Representatives of the time and manner of such filingSecurities Act.
(nk) Neither The Issuer, the Issuer nor any affiliate of the Issuer has taken, nor Guarantors and their respective affiliates will the Issuer or any affiliate of the Issuer not take, directly or indirectly, any action designed to, to or that might has constituted or that reasonably could be expected to cause or result in, under in the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Issuer or the Guarantors in connection with the offering of the Notes.
(l) The Issuer and the Guarantors will use their reasonable best efforts to facilitate permit the Notes to be eligible for clearance and settlement through DTC.
(m) The Issuer and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Issuer, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(n) The Issuer and the Guarantors agree not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would be integrated with the sale of the Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or resale the Eligible Purchasers of the Notes.
(o) The Parent will use its best efforts to continue to qualify as a real estate investment trust (a “REIT”) under the Internal Revenue Code of 1986, as amended, Issuer and the regulations Guarantors agree to comply with all the terms and published interpretations thereunder (collectively, conditions of the “Code”), so long as its Board of Directors deems it Registration Rights Agreement and all agreements set forth in the best interest of the Parent’s stockholders to remain so qualified.
(p) Each representation letters of the Issuer and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(p) The Issuer will use all reasonable best efforts indemnify and hold harmless the Initial Purchasers in their capacities as such against any documentary, stamp or similar issuance tax, including any interest and penalties imposed thereon, on the creation, issuance and sale of the Notes and on the execution and delivery of this Agreement. All payments to be made by the Issuer hereunder shall be made without any withholding or deduction from or through which payment is made for or on account of any present or future taxes, duties or governmental charges whatsoever unless the Issuer is compelled by law to deduct or withhold such taxes, duties or charges. In that event, the Issuer shall pay such additional amounts as may be necessary in order that the net amounts received after such withholding or deduction shall equal the amounts that would have been received if no withholding or deduction had been made.
(q) The Issuer and the Guarantors will do or and perform all things required or necessary to be done or and performed under this Agreement by the Issuer and the Guarantors them prior to the Closing Date Date, and to satisfy all conditions precedent to the delivery of Initial Purchasers’ obligations hereunder to purchase the Notes pursuant to this AgreementNotes.
(q) Neither the Issuer nor the Guarantors will, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge or otherwise dispose of or enter into any transaction that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Issuer or the Guarantors or any affiliate of the Issuer or the Guarantors, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position (within the meaning of Section 16 of the Exchange Act), on any debt securities or guarantees thereon (other than the Notes and the Guarantees); or publicly announce an intention to effect any such transaction, until after the Closing Date.
(r) Each of the Issuer and the Guarantors will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Sxxxxxxx-Xxxxx Act of 2002 (the “Sxxxxxxx-Xxxxx Act”), and will use its reasonable best efforts to cause its directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sxxxxxxx-Xxxxx Act.
(s) The Issuer and the Guarantors will file any Issuer Free Writing Prospectus to the extent required by Rule 433 within the time period required by such rule. The Issuer will retain, pursuant to reasonable procedures developed in good faith, copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433(g).
Appears in 1 contract
Samples: Purchase Agreement (Cott Corp /Cn/)
Agreements of the Issuer and the Guarantors. The Issuer and each of the Guarantors, Guarantors jointly and severally, severally covenant and agree with each Underwriter as followsInitial Purchaser that:
(a) If, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment The Issuer will deliver to the Registration Statement to be declared effective before the offering Initial Purchasers as many copies of the Notes Offering Memorandum (including all amendments and supplements thereto) as the Representatives may commencereasonably request.
(b) Before making or distributing any amendment or supplement to the Offering Memorandum, each the Issuer will furnish to the Representatives and counsel for the Initial Purchasers a copy of the proposed amendment or supplement for review, and will not distribute any such proposed amendment or supplement to which the Representatives reasonably object.
(c) The Issuer and the Guarantors will use its best efforts to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly andpromptly, if requested by the Representatives, will and confirm such advice in writing, immediately after such post-effective amendment has become effective.
(bi) If, of the issuance by any governmental or regulatory authority of any order preventing or suspending the use of the Preliminary Offering Memorandum or the Offering Memorandum or the initiation or threatening of any proceeding for that purpose; (ii) of the occurrence of any event at any time prior to the filing completion of the Prospectus pursuant to Rule 424(b), any event occurs initial offering of the Securities as a result of which the Disclosure Package Offering Memorandum as then amended or supplemented would include any 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 existing when the Offering Memorandum is delivered to a purchaser, not misleading; and (xiii) of the receipt by any of the Issuer of any notice with respect to any suspension of the qualification of the Securities for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and each of the Issuer will use its reasonable best efforts to prevent the issuance of any such order preventing or suspending the use of the Preliminary Offering Memorandum or the Offering Memorandum or suspending any such qualification of the Securities and, if any such order is issued, will obtain as soon as possible the withdrawal thereof.
(d) If at any time prior to the completion of the initial offering of the Securities (i) any event shall occur or condition shall exist as a result of which the Offering Memorandum as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing, not misleading or (y) conflict with the information contained in the Registration Statement, the Issuer and the Guarantors will (i) notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement, omission or conflicting information; and (iii) supply any amendment or supplement to the Representatives in such quantities as may be reasonably requested.
(c) The Issuer and the Guarantors will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing: (i) of any review, issuance of comments or request by the Commission or its staff on or for an amendment of or a supplement to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information regarding the Issuer, the Guarantors, their respective affiliates or any filings with the Commission, whether or not such filings are incorporated by reference into the Registration Statement, any Preliminary Prospectus or the Prospectus; (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Notes for offering or sale in any jurisdiction or the initiation of any proceeding for such purpose or any examination pursuant to Section 8(e) of the Act relating to the Registration Statement or Section 8A of the Act in connection with the offering of the Notes; (iii) of the receipt by the Issuer or any Guarantor of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose; and (iv) within the period of time referred to in the first sentence in subsection (f) below, of any change in the Issuer’s or any Guarantor’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which results in any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) being untrue or which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Issuer and the Guarantors will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
(d) On request, the Issuer and the Guarantors will furnish to the Representatives and counsel to the Underwriters, without charge: (i) one (1) signed copy of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits to the Registration Statement; (ii) such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto, but without exhibits, as the Representatives may request; (iii) such number of copies of the Incorporated Documents, without exhibits, as the Representatives may request; and (iv) one (1) copy of the exhibits to the Incorporated Documents.
(e) Neither the Issuer nor any Guarantor will file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in the first sentence in subsection (f) below, file any document which upon filing becomes an Incorporated Document, of which the Representatives shall not previously have been advised or to which, after the Representatives shall have received a copy of the document proposed to be filed, the Representatives shall reasonably object; and no such further document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of the Issuer and the Guarantors will give the Representatives notice of its intention to make any other filing pursuant to the Exchange Act from the Applicable Time to the Closing Time and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing.
(f) After the execution and delivery of this Agreement and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered (or in lieu thereof, the notice referred to in Rule 173(a)) in connection with sales by the Underwriters or any dealer (including circumstances where such requirement may be satisfied pursuant to Rule 172), each of the Issuer and the Guarantors will file promptly all reports and any definitive proxy or information statements required to be filed by the Issuer or the Guarantors with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act and will expeditiously deliver to the Underwriters and each dealer, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto), any Preliminary Prospectus and any Issuer Free Writing Prospectus as each Underwriter may request. Each of the Issuer and the Guarantors consents to the use of the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or blue sky laws of the jurisdictions in which the Notes are offered by the Underwriters and by all dealers to whom Notes may be sold, both in connection with the offering and sale of the Notes and for such period of time thereafter as the Prospectus is required by the Act to be delivered (or in lieu thereof, the notice referred to in Rule 173(a)) in connection with sales by the Underwriters or any dealers. If during such period of time: (i) any event shall occur as a result of which, in the judgment of the Issuer and the Guarantors, or in the opinion of counsel for the Underwriters, the Prospectus as supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances existing when the Prospectus Offering Memorandum is delivered to a purchaser, not misleading; misleading or (ii) if it is necessary to amend or supplement the Prospectus or amend the Registration Statement (or to file under the Exchange Act any document which, upon filing, would become an Incorporated Document) in order Offering Memorandum to comply with the Act, the Exchange Act or any other law, the Issuer and the Guarantors will promptly immediately notify the Representatives of such event Initial Purchasers thereof and forthwith prepare and, subject to paragraph (b) above, furnish to the provisions Initial Purchasers such amendments or supplements to the Offering Memorandum as may be necessary so that the statements in the Offering Memorandum as so amended or supplemented will not, in the light of paragraph the circumstances existing when the Offering Memorandum is delivered to a purchaser, be misleading or so that the Offering Memorandum will comply with law.
(e) above, file with The Issuer will qualify the Commission an appropriate supplement or amendment thereto (or to such document), and will expeditiously furnish to the Underwriters and dealers a reasonable number of copies thereof. In the event that the Issuer and the Representatives agree that the Prospectus should be amended or supplemented, the Issuer, if requested by the Representatives, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplement.
(g) Each of the Issuer and the Guarantors will: (i) cooperate with the Underwriters and their counsel in connection with the registration or qualification of the Notes Securities for offering offer and sale by the Underwriters and by dealers under the securities or blue sky Blue Sky laws of such jurisdictions as the Underwriters may designate; (ii) maintain Representatives shall reasonably request and will continue such qualifications in effect so long as required for the distribution offering and resale of the Notes; and (iii) file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualificationSecurities; provided that in no event shall none of the Issuer or any Guarantor of the Guarantors shall be obligated required to (i) qualify to do business as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it is would not now otherwise be required to so qualified or to take qualify, (ii) file any action which would subject it general consent to service of process in suits, other than those arising out of the offering any such jurisdiction or sale of the Notes, (iii) subject itself to taxation in any such jurisdiction where if it is not now otherwise so subject.
(hf) Unless During the Issuer or period from the Guarantors have or shall have obtained date hereof through and including the prior written consent of date that is 90 days after the Representativesdate hereof, each of the Issuer and the Guarantors has not made and will not make any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Issuer or the Guarantors with the Commission or retained by the Issuer or the Guarantors under Rule 433; provided that the prior written consent each of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses listed in Schedule II hereto and any electronic road show. Any such free writing prospectus consented to by the Representatives or the Issuer and the Guarantors is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Issuer and the Guarantors agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Issuer and the Guarantors will make generally available to its security holders and to the Underwriters as soon as practicable, but in no event later than fifteen (15) months after the end of the Parent’s current fiscal quarter, a consolidated earnings statement of the Parent, which need not be audited, covering a 12-month period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158.
(j) During the period commencing on the date hereof and ending on the date occurring three (3) years hereafter, the Issuer and the Guarantors will furnish to the Underwriters: (i) as soon as available, if requested, a copy of each report of the Parent mailed to stockholders or filed with the Commission that is not publicly available on EXXXX or the Parent’s website; and (ii) from time to time such other information concerning the Issuer or the Guarantors as the Representatives may reasonably request.
(k) The Issuer and the Guarantors shall reimburse the Underwriters for reasonable out-of-pocket expenses (including the reasonable fees and expenses of counsel for the Underwriters) incurred by the Underwriters in connection herewith if this Agreement is terminated pursuant to any provisions hereof or if this Agreement is terminated by the Representatives because of any inability, failure or refusal on the part of the Issuer or the Guarantors to comply with the terms or fulfill any of the conditions of this Agreement.
(l) The Issuer will apply the net proceeds from the sale of the Notes in the manner specified in the Registration Statement, the Disclosure Package and the Prospectus under the heading “Use of Proceeds.”
(m) If Rule 430A, 430B or 430C is employed, the Issuer will timely file the Prospectus pursuant to Rule 424(b) and will advise the Representatives of the time and manner of such filing.
(n) Neither the Issuer nor any affiliate of the Issuer has taken, nor will the Issuer or any affiliate of the Issuer take, directly or indirectly, any action designed to, or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Issuer to facilitate the sale or resale of the Notes.
(o) The Parent will use its best efforts to continue to qualify as a real estate investment trust (a “REIT”) under the Internal Revenue Code of 1986, as amended, and the regulations and published interpretations thereunder (collectively, the “Code”), so long as its Board of Directors deems it in the best interest of the Parent’s stockholders to remain so qualified.
(p) Each of the Issuer and the Guarantors will use all reasonable best efforts to do or perform all things required to be done or performed by the Issuer and the Guarantors prior to the Closing Date to satisfy all conditions precedent to the delivery of the Notes pursuant to this Agreement.
(q) Neither the Issuer nor the Guarantors willnot, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge sell or otherwise dispose of any debt securities issued or enter into any transaction that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) guaranteed by the Issuer or any of the Guarantors and having a tenor of more than one year.
(g) The Issuer will apply the net proceeds from the sale of the Securities as described in the Offering Memorandum under the heading “Use of Proceeds”.
(h) While the Securities remain outstanding and are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Issuer and each of the Guarantors will, during any period in which the Issuer is not subject to and in compliance with Section 13 or 15(d) of the Exchange Act, furnish to holders of the Securities and prospective purchasers of the Securities designated by such holders, upon the request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(i) If requested, the Issuer will assist the Initial Purchasers in arranging for the Securities to be designated Private Offerings, Resales and Trading through Automated Linkages (“PORTAL”) Market securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. (“NASD”) relating to trading in the PORTAL Market and for the Securities to be eligible for clearance and settlement through DTC.
(j) Until the issuance of the Exchange Securities, the Issuer will not, and will not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Securities that have been acquired by any of them, except for Securities purchased by the Issuer or any affiliate of its affiliates and resold in a transaction registered under the Securities Act.
(k) Neither the Issuer nor any of its affiliates (as defined in Rule 501(b) of Regulation D) will, directly or through any agent, sell, offer for sale, solicit offers to buy or otherwise negotiate in respect of, any security (as defined in the Securities Act), that is or will be integrated with the sale of the Securities in a manner that would require registration of the Securities under the Securities Act.
(l) None of the Issuer or any of its affiliates or any other person acting on its or their behalf (other than the GuarantorsInitial Purchasers, as to which no covenant is given) will (i) solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act or (ii) engage in any directed selling efforts within the meaning of Regulation S, and all such persons will comply with the offering restrictions requirement of Regulation S.
(m) Neither the Issuer nor any of the Guarantors will take, directly or indirectly, any action designed to or establish that could reasonably be expected to cause or increase a put equivalent position result in any stabilization or liquidate or decrease a call equivalent position (within the meaning of Section 16 manipulation of the Exchange Act), on any debt securities or guarantees thereon (other than the Notes and the Guarantees); or publicly announce an intention to effect any such transaction, until after the Closing Date.
(r) Each price of the Issuer and the Guarantors will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Sxxxxxxx-Xxxxx Act of 2002 (the “Sxxxxxxx-Xxxxx Act”), and will use its reasonable best efforts to cause its directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sxxxxxxx-Xxxxx ActSecurities.
(s) The Issuer and the Guarantors will file any Issuer Free Writing Prospectus to the extent required by Rule 433 within the time period required by such rule. The Issuer will retain, pursuant to reasonable procedures developed in good faith, copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433(g).
Appears in 1 contract
Agreements of the Issuer and the Guarantors. The Issuer Issuer, the Endurance Guarantors, and upon execution and delivery of the Purchase Agreement Joinder, each of the Constant Contact Guarantors, jointly and severally, agree with each Underwriter of the Initial Purchasers as follows:
(a) If, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Notes may commence, each of the Issuer and the Guarantors will use its best efforts to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, immediately after such post-effective amendment has become effective.
(b) If, at any time prior to the filing of the Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would (x) include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing, not misleading or (y) conflict with the information contained in the Registration Statement, the Issuer and the Guarantors will (i) notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement, omission or conflicting information; and (iii) supply any amendment or supplement to the Representatives in such quantities as may be reasonably requested.
(c) The Issuer and the Guarantors will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing: (i) of any review, issuance of comments or request by the Commission or its staff on or for an amendment of or a supplement to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information regarding the Issuer, the Guarantors, their respective affiliates or any filings with the Commission, whether or not such filings are incorporated by reference into the Registration Statement, any Preliminary Prospectus or the Prospectus; (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Notes for offering or sale in any jurisdiction or the initiation of any proceeding for such purpose or any examination pursuant to Section 8(e) of the Act relating to the Registration Statement or Section 8A of the Act in connection with the offering of the Notes; (iii) of the receipt by the Issuer or any Guarantor of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose; and (iv) within the period of time referred to in the first sentence in subsection (f) below, of any change in the Issuer’s or any Guarantor’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which results in any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) being untrue or which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Issuer and the Guarantors will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
(d) On request, the Issuer and the Guarantors will furnish to the Representatives and counsel to the UnderwritersInitial Purchasers, without charge: (i) one (1) signed copy of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits to the Registration Statement; (ii) such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto, but without exhibits, as the Representatives may request; (iii) such number of copies of the Incorporated Documents, without exhibits, Final Offering Memorandum as the Representatives may then be amended or supplemented as they may reasonably request; and (iv) one (1) copy of the exhibits to the Incorporated Documents.
(eb) Neither The Issuer and the Issuer nor any Guarantor Endurance Guarantors will file any amendment to prepare the Registration Statement or Final Offering Memorandum in a form approved by the Representatives and will not make any amendment or supplement to the Prospectus or, prior Pricing Disclosure Package or to the end of the period of time referred to in the first sentence in subsection (f) below, file any document which upon filing becomes an Incorporated Document, Final Offering Memorandum of which the Representatives shall not previously have been advised or to which, after the Representatives shall have received a copy of the document proposed to be filed, which the Representatives shall reasonably object; and no such further document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of the Issuer and the Guarantors will give the Representatives notice of its intention to make any other filing pursuant to the Exchange Act from the Applicable Time to the Closing Time and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filingobject after being so advised.
(fc) After the execution and delivery of this Agreement and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered (or in lieu thereof, the notice referred to in Rule 173(a)) in connection with sales by the Underwriters or any dealer (including circumstances where such requirement may be satisfied pursuant to Rule 172), each of the Issuer and the Guarantors will file promptly all reports and any definitive proxy or information statements required to be filed by the Issuer or the Guarantors with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act and will expeditiously deliver to the Underwriters and each dealer, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto), any Preliminary Prospectus and any Issuer Free Writing Prospectus as each Underwriter may request. Each of the Issuer and the Guarantors consents to the use of the Prospectus (Pricing Disclosure Package and of any amendment or supplement thereto) the Final Offering Memorandum in accordance with the provisions of the Act and with the securities or blue sky Blue Sky laws of the jurisdictions in which the Notes are offered by the Underwriters Initial Purchasers and by all dealers to whom Notes may be sold, both in connection with the offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of the Notes and for such period of time thereafter as the Prospectus is required by the Act Initial Purchasers to be delivered (or in lieu thereofEligible Purchasers, the notice referred to in Rule 173(a)) in connection with sales by the Underwriters or any dealers. If during such period of time: (i) any event shall occur as a result of whichoccurs or information becomes known that, in the judgment of the Issuer and or any of the Guarantors, Guarantors or in the opinion of counsel for the UnderwritersInitial Purchasers, should be set forth in the Prospectus Pricing Disclosure Package or the Final Offering Memorandum so that the Pricing Disclosure Package or the Final Offering Memorandum, as supplemented would then amended or supplemented, does not include an any untrue statement of a material fact fact, or omit to state any a material fact fact, necessary in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading; , or (ii) if it is necessary to supplement the Prospectus or amend the Registration Statement (Pricing Disclosure Package or to file under the Exchange Act any document which, upon filing, would become an Incorporated Document) Final Offering Memorandum in order to comply with the Act, the Exchange Act or any other law, the Issuer and the Guarantors will promptly notify the Representatives of such event and forthwith prepare and, subject to the provisions of paragraph (e) above, file with the Commission an appropriate supplement or amendment thereto (or to such document)thereto, and will expeditiously furnish to the Underwriters and dealers Initial Purchasers a reasonable number of copies thereof. In the event that .
(e) None of Holdings, the Issuer and the Representatives agree that the Prospectus should be amended or supplemented, any of the Issuer, if requested by ’s subsidiaries will make any offer to sell or solicitation of an offer to buy the Notes that would constitute a Free Writing Offering Document without the prior consent of the Representatives, will promptly issue a press release announcing which consent shall not be unreasonably withheld or disclosing the matters to be covered by the proposed amendment or supplementdelayed.
(gf) Each of Promptly from time to time to take such action as the Issuer and the Guarantors will: (i) cooperate with the Underwriters and their counsel in connection with the registration or qualification of Initial Purchasers may reasonably request to qualify the Notes for offering and sale by the Underwriters and by dealers under the securities or blue sky Blue Sky laws of such jurisdictions as the Underwriters Initial Purchasers may designate; (ii) maintain request and to comply with such qualifications laws so as to permit the continuance of sales and dealings therein in effect so such jurisdictions for as long as required for may be necessary to complete the distribution of the Notes; and (iii) file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided that in no event shall connection therewith neither the Issuer or nor any Guarantor shall be obligated required to (i) qualify to do business as a foreign corporation in any jurisdiction where in which it is would not now otherwise be required to so qualified or to take any action which would subject it qualify, (ii) file a general consent to service of process in suitsany such jurisdiction, other than those arising out of the offering or sale of the Notes, (iii) subject itself to taxation in any jurisdiction where in which it is would not now so otherwise be subject.
(hg) Unless the Issuer or the Guarantors have or shall have obtained the prior written consent of the Representatives, each of the Issuer and the Guarantors has not made and will not make any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute For a Free Writing Prospectus required to be filed by the Issuer or the Guarantors with the Commission or retained by the Issuer or the Guarantors under Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses listed in Schedule II hereto and any electronic road show. Any such free writing prospectus consented to by the Representatives or the Issuer and the Guarantors is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Issuer and the Guarantors agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Issuer and the Guarantors will make generally available to its security holders and to the Underwriters as soon as practicable, but in no event later than fifteen (15) months after the end of the Parent’s current fiscal quarter, a consolidated earnings statement of the Parent, which need not be audited, covering a 12-month period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158.
(j) During the period commencing on the date hereof and ending on the 60th day after the date occurring three (3) years hereafterof the Final Offering Memorandum, each of the Issuer and the Guarantors will furnish to the Underwriters: agrees not to, directly or indirectly, (i) as soon as availableoffer for sale, if requestedsell, a copy or otherwise dispose of each report (or enter into any transaction or device that is designed, or would be expected, to result in the disposition by any person at any time in the future of) any capital markets debt securities of the Parent mailed Issuer substantially similar to stockholders or filed with the Commission that is not publicly available on EXXXX Notes (other than the issuance of Exchange Securities pursuant to, or the Parent’s website; and filing of a registration statement pursuant to, the Registration Rights Agreement) or securities convertible into or exchangeable for such debt securities of the Issuer, or sell or grant options, rights or warrants with respect to such debt securities of the Issuer or securities convertible into or exchangeable for such debt securities of the Issuer, (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such debt securities of the Issuer, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Issuer or other securities, in cash or otherwise, or (iii) publicly announce an offering of any debt securities of the Issuer substantially similar to the Notes (other than the issuance of Exchange Securities pursuant to, or the filing of a registration statement pursuant to, the Registration Rights Agreement) or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Representatives on behalf of the Initial Purchasers.
(h) At any time when Holdings is not subject to Section 13 or 15(d) of the Exchange Act, for the benefit of holders from time to time such other of Notes, it will furnish at its expense, on behalf of the Issuer, upon request, to holders of Notes and prospective purchasers of Notes, information concerning satisfying the Issuer or requirements of Rule 144A(d)(4) under the Guarantors as the Representatives may reasonably requestSecurities Act.
(k) The Issuer and the Guarantors shall reimburse the Underwriters for reasonable out-of-pocket expenses (including the reasonable fees and expenses of counsel for the Underwriters) incurred by the Underwriters in connection herewith if this Agreement is terminated pursuant to any provisions hereof or if this Agreement is terminated by the Representatives because of any inability, failure or refusal on the part of the Issuer or the Guarantors to comply with the terms or fulfill any of the conditions of this Agreement.
(li) The Issuer will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the manner specified in the Registration Statement, the Pricing Disclosure Package and the Prospectus Final Offering Memorandum under the heading caption “Use of Proceeds.”
(m) If Rule 430A, 430B or 430C is employed, the Issuer will timely file the Prospectus pursuant to Rule 424(b) and will advise the Representatives of the time and manner of such filing.
(n) Neither the Issuer nor any affiliate of the Issuer has taken, nor will the Issuer or any affiliate of the Issuer take, directly or indirectly, any action designed to, or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Issuer to facilitate the sale or resale of the Notes.
(oj) The Parent Issuer will use its best efforts to continue permit the Notes to qualify as a real estate investment trust (a “REIT”) under the Internal Revenue Code of 1986, as amended, be eligible for clearance and the regulations and published interpretations thereunder (collectively, the “Code”), so long as its Board of Directors deems it in the best interest of the Parent’s stockholders to remain so qualifiedsettlement through DTC.
(pk) Each During the period from the Closing Date until one year after the Closing Date, the Issuer will not, and will not permit any of the its subsidiaries to, resell any Notes that have been acquired by any of them except for Notes resold in a transaction that complies with applicable securities laws.
(l) The Issuer and the Guarantors will use all reasonable best efforts not and will cause their affiliates (other than the Initial Purchasers, as to do which no agreement is made) not to sell, offer for sale or perform all things required solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would be done integrated with the sale of the Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or performed by the Eligible Purchasers of the Notes. The Issuer and the Guarantors prior will take reasonable precautions designed to the Closing Date to satisfy all conditions precedent to the delivery of the Notes pursuant to this Agreement.
(q) Neither the Issuer nor the Guarantors willensure that any offer or sale, without the prior written consent of the Representativesdirect or indirect, offer, sell, contract to sell, pledge or otherwise dispose of or enter into any transaction that is designed to, or might reasonably be expected to, result in the disposition United States or to any U.S. person (whether by actual disposition as defined in Rule 902 under the Securities Act), of any Notes or effective economic disposition due to cash settlement or otherwise) any substantially similar security issued by the Issuer or any Guarantor, within six months subsequent to the Guarantors date on which the distribution of the Notes has been completed (as notified to the Issuer by the Initial Purchasers), is made under restrictions and other circumstances reasonably designed not to affect the status of the offer and sale of the Notes in the United States and to U.S. persons contemplated by this Agreement as transactions exempt from the registration provisions of the Securities Act, including any sales pursuant to Rule 144A under, or any affiliate Regulations D or S of, the Securities Act.
(m) None of the Issuer or the Guarantors, directly or indirectlyany of their affiliates or any other person acting on their behalf (other than the Initial Purchasers, as to which no covenant is given) will (i) solicit offers for, or establish offer or increase sell, the Notes by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D or in any manner involving a put equivalent position or liquidate or decrease a call equivalent position (public offering within the meaning of Section 16 4(a)(2) of the Exchange Act)Securities Act or (ii) engage in any directed selling efforts within the meaning of Regulation S, and all such persons will comply with the offering restrictions requirement of Regulation S.
(n) The Issuer and Holdings will cause each of the Constant Contact Guarantors to execute and deliver to the Initial Purchasers the Purchase Agreement Joinder after the Acquisition on any debt securities or guarantees thereon (other than the Notes and the Guarantees); or publicly announce an intention to effect any such transaction, until after the Closing Date.
(ro) Each The Issuer and Holdings will cause each of the Constant Contact Guarantors to execute and deliver to the Initial Purchasers the Registration Rights Agreement Joinder after the Acquisition on the Closing Date.
(p) The Issuer and Holdings will cause the written opinion of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, as counsel to the Issuer and the Guarantors will comply with all applicable securities Guarantors, addressed to the Initial Purchasers and other applicable lawsdated the Closing Date, rules and regulations, including, without limitation, substantially in the Sxxxxxxx-Xxxxx Act form of 2002 (the “Sxxxxxxx-Xxxxx Act”), and will use its reasonable best efforts to cause its directors and officers, in their capacities as suchExhibit D hereto, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sxxxxxxx-Xxxxx Act.
(s) The Issuer and the Guarantors will file any Issuer Free Writing Prospectus be furnished to the extent required by Rule 433 within the time period required by such rule. The Issuer will retain, pursuant to reasonable procedures developed in good faith, copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433(g)Initial Purchasers.
Appears in 1 contract
Samples: Purchase Agreement (Endurance International Group Holdings, Inc.)
Agreements of the Issuer and the Guarantors. The Issuer and the Guarantors, jointly and severally, agree with each Underwriter of the Initial Purchasers as follows:
(a) If, at The Issuer and the time this Agreement is executed and delivered, it is necessary for a post-effective amendment Guarantors will furnish to the Registration Statement to be declared effective before the offering Initial Purchasers, without charge, within one business day of the date of the Offering Memorandum, such number of copies of the Offering Memorandum as may then be amended or supplemented as they may reasonably request.
(b) Prior to the sale of Notes may commenceand Guarantees hereunder, each of the Issuer and the Guarantors will use its best efforts to cause such post-effective amendment to become effective as soon as possible prepare the Offering Memorandum in a form approved by the Initial Purchasers and will advise not make any amendment or supplement to the Representatives promptly and, if requested by Pricing Disclosure Package or to the Representatives, will confirm such advice in writing, immediately Offering Memorandum of which the Initial Purchasers shall not previously have been advised and to which they shall reasonably object after such post-effective amendment has become effectivebeing so advised.
(bc) The Issuer and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to the filing completion of the Prospectus pursuant distribution of the Notes by the Initial Purchasers to Rule 424(b)Eligible Purchasers, any event occurs as a result or information becomes known that, in the judgment of which the Issuer or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package would (x) or the Offering Memorandum so that the Pricing Disclosure Package or the Offering Memorandum, as then amended or supplemented, does not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing, not misleading or (y) conflict with the information contained in the Registration Statement, the Issuer and the Guarantors will (i) notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement, omission or conflicting information; and (iii) supply any amendment or supplement to the Representatives in such quantities as may be reasonably requested.
(c) The Issuer and the Guarantors will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing: (i) of any review, issuance of comments or request by the Commission or its staff on or for an amendment of or a supplement to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information regarding the Issuer, the Guarantors, their respective affiliates or any filings with the Commission, whether or not such filings are incorporated by reference into the Registration Statement, any Preliminary Prospectus or the Prospectus; (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Notes for offering or sale in any jurisdiction or the initiation of any proceeding for such purpose or any examination pursuant to Section 8(e) of the Act relating to the Registration Statement or Section 8A of the Act in connection with the offering of the Notes; (iii) of the receipt by the Issuer or any Guarantor of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose; and (iv) within the period of time referred to in the first sentence in subsection (f) below, of any change in the Issuer’s or any Guarantor’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which results in any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) being untrue or which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Issuer and the Guarantors will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
(d) On request, the Issuer and the Guarantors will furnish to the Representatives and counsel to the Underwriters, without charge: (i) one (1) signed copy of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits to the Registration Statement; (ii) such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto, but without exhibits, as the Representatives may request; (iii) such number of copies of the Incorporated Documents, without exhibits, as the Representatives may request; and (iv) one (1) copy of the exhibits to the Incorporated Documents.
(e) Neither the Issuer nor any Guarantor will file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in the first sentence in subsection (f) below, file any document which upon filing becomes an Incorporated Document, of which the Representatives shall not previously have been advised or to which, after the Representatives shall have received a copy of the document proposed to be filed, the Representatives shall reasonably object; and no such further document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Each of , or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Memorandum in order to comply with any law, the Issuer and the Guarantors will give the Representatives notice of its intention forthwith prepare an appropriate supplement or amendment thereto, and will, subject to make any other filing pursuant clause (b) above, expeditiously furnish to the Exchange Act from the Applicable Time to the Closing Time Initial Purchasers and will furnish the Representatives with copies of any such documents dealers a reasonable amount number of time prior to such proposed filingcopies thereof.
(fe) After the execution and delivery of this Agreement and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered (or in lieu thereof, the notice referred to in Rule 173(a)) in connection with sales by the Underwriters or any dealer (including circumstances where such requirement may be satisfied pursuant to Rule 172), each None of the Issuer and nor any Guarantor will make any offer to sell or solicitation of an offer to buy the Guarantors will file promptly all reports and any definitive proxy or information statements required to be filed by Notes that would constitute a Free Writing Offering Document without the Issuer or the Guarantors with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) prior consent of the Exchange Act and will expeditiously deliver to the Underwriters and each dealerRepresentative, without charge, as many copies which consent shall not be unreasonably withheld or delayed. If at any time following issuance of the Prospectus (and of any amendment or supplement thereto), any Preliminary Prospectus and any Issuer a Free Writing Prospectus as each Underwriter may request. Each of the Issuer and the Guarantors consents to the use of the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or blue sky laws of the jurisdictions in which the Notes are offered by the Underwriters and by all dealers to whom Notes may be sold, both in connection with the offering and sale of the Notes and for such period of time thereafter as the Prospectus is required by the Act to be delivered (or in lieu thereof, the notice referred to in Rule 173(a)) in connection with sales by the Underwriters or any dealers. If during such period of time: (i) Offering Document any event shall occur occurred or occurs as a result of which, which such Free Writing Offering Document conflicts with the information in the judgment of Preliminary Offering Memorandum, the Issuer and Pricing Disclosure Package or the GuarantorsOffering Memorandum or, or when taken together with the information in the opinion of counsel for the UnderwritersPreliminary Offering Memorandum, the Prospectus as supplemented would include Pricing Disclosure Package or the Offering Memorandum, includes an untrue statement of a material fact or omit omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserthen prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Issuer will give notice thereof to the Initial Purchasers through the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; or provided that in connection therewith the Issuer shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) if file a general consent to service of process in any such jurisdiction, or (iii) subject itself to taxation in any jurisdiction in which it is necessary to supplement would not otherwise be subject.
(g) For a period commencing on the Prospectus or amend date hereof and ending on the Registration Statement (or to file under 60th day after the Exchange Act any document which, upon filing, would become an Incorporated Document) in order to comply with date of the Act, the Exchange Act or any other lawOffering Memorandum, the Issuer and the Guarantors will promptly notify agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the Representatives disposition by any person at any time in the future of) any debt securities of such event and forthwith prepare and, subject the Company or the Issuer substantially similar to the provisions Notes or securities convertible into or exchangeable for such debt securities of paragraph (e) above, file with the Commission an appropriate supplement Company or amendment thereto (or to such document), and will expeditiously furnish to the Underwriters and dealers a reasonable number of copies thereof. In the event that the Issuer and the Representatives agree that the Prospectus should be amended or supplemented, the Issuer, if requested by or sell or grant options, rights or warrants with respect to such debt securities of the RepresentativesCompany or the Issuer or securities convertible into or exchangeable for such debt securities of the Company or the Issuer, will promptly issue a press release announcing (ii) enter into any swap or disclosing other derivatives transaction that transfers to another, in whole or in part, any of the matters economic benefits or risks of ownership of such debt securities of the Company or the Issuer (other than any swap or derivative transaction with respect to the Notes), whether any such transaction described in clause (i) or (ii) above is to be covered settled by delivery of debt securities of the proposed amendment Company or supplementthe Issuer or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company or the Issuer substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or the Issuer, or (iv) publicly announce an offering of any debt securities of the Company or the Issuer substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, on behalf of the Initial Purchasers, except in exchange for the Exchange Notes and the Exchange Guarantees in connection with the Exchange Offer.
(gh) Each So long as any of the Notes are outstanding, the Issuer and the Guarantors will: (i) cooperate with , furnish at their expense to the Underwriters and their counsel in connection with Initial Purchasers, and, upon request, to the registration or qualification holders of the Notes for offering and sale prospective purchasers of the Notes the information required by the Underwriters and by dealers Rule 144A(d)(4) under the securities or blue sky laws of Securities Act (if any) unless such jurisdictions as the Underwriters may designate; (ii) maintain such qualifications in effect so long as required for the distribution of the Notes; and (iii) file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided that in no event shall the Issuer or any Guarantor be obligated to qualify to do business in any jurisdiction where it information is not now so qualified or to take any action which would subject it to service of process in suits, other than those arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject.
(h) Unless the Issuer or the Guarantors have or shall have obtained the prior written consent of the Representatives, each of the Issuer and the Guarantors has not made and will not make any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Issuer or the Guarantors with the Commission or retained by the Issuer or the Guarantors under Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses listed in Schedule II hereto and any electronic road show. Any such free writing prospectus consented to by the Representatives or the Issuer and the Guarantors is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Issuer and the Guarantors agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keepingpublicly available.
(i) The Issuer and the Guarantors will make generally available to its security holders and to the Underwriters as soon as practicable, but in no event later than fifteen (15) months after the end of the Parent’s current fiscal quarter, a consolidated earnings statement of the Parent, which need not be audited, covering a 12-month period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158.
(j) During the period commencing on the date hereof and ending on the date occurring three (3) years hereafter, the Issuer and the Guarantors will furnish to the Underwriters: (i) as soon as available, if requested, a copy of each report of the Parent mailed to stockholders or filed with the Commission that is not publicly available on EXXXX or the Parent’s website; and (ii) from time to time such other information concerning the Issuer or the Guarantors as the Representatives may reasonably request.
(k) The Issuer and the Guarantors shall reimburse the Underwriters for reasonable out-of-pocket expenses (including the reasonable fees and expenses of counsel for the Underwriters) incurred by the Underwriters in connection herewith if this Agreement is terminated pursuant to any provisions hereof or if this Agreement is terminated by the Representatives because of any inability, failure or refusal on the part of the Issuer or the Guarantors to comply with the terms or fulfill any of the conditions of this Agreement.
(l) The Issuer will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the manner specified in the Registration Statement, the Pricing Disclosure Package and the Prospectus Offering Memorandum under the heading caption “Use of Proceeds.”
(mj) If The Issuer and the Guarantors agree not to solicit any offer to buy or sell the Notes by means of any form of general solicitation or general advertising (as those terms are defined in Regulation D under the Securities Act), or by means of any directed selling efforts (as defined in Rule 430A, 430B or 430C is employed, 902 under the Issuer will timely file Securities Act and the Prospectus Commission’s Release No. 33-6863) in the United States in connection with any Notes being offered and sold pursuant to Rule 424(b) and will advise Regulation S under the Representatives of the time and manner of such filingSecurities Act.
(nk) Neither The Issuer, the Issuer nor any affiliate of the Issuer has taken, nor Guarantors and their respective affiliates will the Issuer or any affiliate of the Issuer not take, directly or indirectly, any action designed to, to or that might has constituted or that reasonably could be expected to cause or result in, under in the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Issuer or the Guarantors in connection with the offering of the Notes.
(l) The Issuer and the Guarantors will use their reasonable best efforts to facilitate permit the Notes to be eligible for clearance and settlement through DTC.
(m) The Issuer and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Issuer, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(n) The Issuer and the Guarantors agree not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would be integrated with the sale of the Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or resale the Eligible Purchasers of the Notes.
(o) The Parent will use its best efforts to continue to qualify as a real estate investment trust (a “REIT”) under the Internal Revenue Code of 1986, as amended, Issuer and the regulations Guarantors agree to comply with all the terms and published interpretations thereunder (collectively, conditions of the “Code”), so long as its Board of Directors deems it Registration Rights Agreement and all agreements set forth in the best interest of the Parent’s stockholders to remain so qualified.
(p) Each representation letters of the Issuer and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(p) The Issuer will use all reasonable best efforts indemnify and hold harmless the Initial Purchasers in their capacities as such against any documentary, stamp or similar issuance tax, including any interest and penalties imposed thereon, on the creation, issuance and sale of the Notes and on the execution and delivery of this Agreement. All payments to be made by the Issuer hereunder shall be made without any withholding or deduction from or through which payment is made for or on account of any present or future taxes, duties or governmental charges whatsoever unless the Issuer is compelled by law to deduct or withhold such taxes, duties or charges. In that event, the Issuer shall pay such additional amounts as may be necessary in order that the net amounts received after such withholding or deduction shall equal the amounts that would have been received if no withholding or deduction had been made.
(q) The Issuer and the Guarantors will do or and perform all things required or necessary to be done or and performed under this Agreement by the Issuer and the Guarantors them prior to the Closing Date Date, and to satisfy all conditions precedent to the delivery of Initial Purchasers’ obligations hereunder to purchase the Notes pursuant to this AgreementNotes.
(q) Neither the Issuer nor the Guarantors will, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge or otherwise dispose of or enter into any transaction that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Issuer or the Guarantors or any affiliate of the Issuer or the Guarantors, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position (within the meaning of Section 16 of the Exchange Act), on any debt securities or guarantees thereon (other than the Notes and the Guarantees); or publicly announce an intention to effect any such transaction, until after the Closing Date.
(r) Each of the Issuer and the Guarantors will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Sxxxxxxx-Xxxxx Act of 2002 (the “Sxxxxxxx-Xxxxx Act”), and will use its reasonable best efforts to cause its directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sxxxxxxx-Xxxxx Act.
(s) The Issuer and the Guarantors will file any Issuer Free Writing Prospectus to the extent required by Rule 433 within the time period required by such rule. The Issuer will retain, pursuant to reasonable procedures developed in good faith, copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433(g).
Appears in 1 contract
Samples: Purchase Agreement (Cott Corp /Cn/)
Agreements of the Issuer and the Guarantors. The Issuer and the Guarantors, jointly and severally, agree with each Underwriter as follows:
(a) If, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Notes may commence, each Each of the Issuer and the Guarantors will use its best efforts to cause such post-effective amendment to become effective as soon as possible and will hereby agrees:
(a) To (i) advise the Representatives Initial Purchasers promptly after obtaining knowledge (and, if requested by the RepresentativesInitial Purchasers, will confirm such advice in writing, immediately after such post-effective amendment has become effective.
(b) If, at any time prior to the filing of the Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would (x) include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing, not misleading or (y) conflict with the information contained in the Registration Statement, the Issuer and the Guarantors will (i) notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement, omission or conflicting information; and (iii) supply any amendment or supplement to the Representatives in such quantities as may be reasonably requested.
(c) The Issuer and the Guarantors will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing: (i) of any review, issuance of comments or request by the Commission or its staff on or for an amendment of or a supplement to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information regarding the Issuer, the Guarantors, their respective affiliates or any filings with the Commission, whether or not such filings are incorporated by reference into the Registration Statement, any Preliminary Prospectus or the Prospectus; (iiA) of the issuance by the Commission any state securities commission of any stop order suspending the effectiveness qualification or exemption from qualification of any of the Registration Statement or of the suspension of qualification of the Notes Securities for offering offer or sale in any jurisdiction jurisdiction, or the initiation of any proceeding for such purpose by any state securities commission or any examination pursuant to Section 8(e) of the Act relating to the Registration Statement or Section 8A of the Act in connection with the offering of the Notes; (iii) of the receipt by the Issuer or any Guarantor of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose; other regulatory authority, and (ivB) within the period of time referred to in the first sentence in subsection (f) below, of any change in the Issuer’s or any Guarantor’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which results in event that makes any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) being Offering Circular untrue or which that requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act to be stated therein or necessary Offering Circular in order to make the statements therein therein, in the light of the circumstances under which they are made, not misleading, (ii) use their respective reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption from qualification of any of the necessity to amend Securities under any state securities or supplement the Prospectus Blue Sky laws, and (as then amended or supplementediii) to comply with the Act or any other law. If if at any time the Commission any state securities commission or other regulatory authority shall issue any stop an order suspending the effectiveness qualification or exemption from qualification of any of the Registration StatementSecurities under any such laws, the Issuer and the Guarantors will make every use their respective reasonable effort best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(db) On request, To (i) furnish the Issuer Initial Purchasers and those persons identified by the Guarantors will furnish Initial Purchasers to the Representatives and counsel to the UnderwritersIssuer, without charge: (i) one (1) signed copy , as many copies of the Registration Statement Preliminary Offering Circular and the Offering Circular, and any amendments or supplements thereto as originally filed with the Commission Initial Purchasers may reasonably request and of each amendment thereto, including financial statements and all exhibits to the Registration Statement; (ii) such number of conformed copies of promptly prepare, upon the Registration Statement as originally filed and of each amendment theretoInitial Purchasers' request, but without exhibits, as the Representatives may request; (iii) such number of copies of the Incorporated Documents, without exhibits, as the Representatives may request; and (iv) one (1) copy of the exhibits to the Incorporated Documents.
(e) Neither the Issuer nor any Guarantor will file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus orOffering Circular that the Initial Purchasers deem to be necessary in connection with Exempt Resales (and the Issuer and the Guarantors hereby consent to the use of the Preliminary Offering Circular and the Offering Circular, and any amendments and supplements thereto, by the Initial Purchasers in connection with Exempt Resales).
(c) Not to amend or supplement the Offering Circular prior to the end of Closing Date or for so long as any Initial Purchaser shall hold any Securities, unless the period of time referred to in the first sentence in subsection (f) below, file any document which upon filing becomes an Incorporated Document, of which the Representatives Initial Purchasers shall not previously have been advised or to thereof and shall not have reasonably objected thereto within five Business Days after being furnished a copy thereof.
(d) So long as any Initial Purchaser shall hold any Securities, (i) if any event shall occur as a result of which, after in the Representatives shall have received a copy reasonable judgment of the document proposed Issuer or the Initial Purchasers, it becomes necessary or advisable to be filed, amend or supplement the Representatives shall reasonably object; and no such further document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary Offering Circular in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Each of , or if it is necessary to amend or supplement the Issuer and the Guarantors will give the Representatives notice of its intention Offering Circular to make any other filing pursuant to the Exchange Act from the comply with Applicable Time to the Closing Time and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing.
Law (f) After the execution and delivery of this Agreement and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered (or in lieu thereof, the notice referred to in Rule 173(a)) in connection with sales by the Underwriters or any dealer (including circumstances where such requirement may be satisfied pursuant to Rule 172defined below), each of the Issuer and the Guarantors will file promptly all reports and any definitive proxy or information statements required forthwith to be filed by the Issuer or the Guarantors with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act and will expeditiously deliver to the Underwriters and each dealer, without charge, as many copies of the Prospectus (and of any prepare an appropriate amendment or supplement thereto), any Preliminary Prospectus and any Issuer Free Writing Prospectus as each Underwriter may request. Each of the Issuer and the Guarantors consents to the use of Offering Circular (in form and substance satisfactory to the Prospectus Initial Purchasers) so that as so amended or supplemented, (and of any amendment or supplement theretoA) in accordance with the provisions of the Act and with the securities or blue sky laws of the jurisdictions in which the Notes are offered by the Underwriters and by all dealers to whom Notes may be sold, both in connection with the offering and sale of the Notes and for such period of time thereafter as the Prospectus is required by the Act to be delivered (or in lieu thereof, the notice referred to in Rule 173(a)) in connection with sales by the Underwriters or any dealers. If during such period of time: (i) any event shall occur as a result of which, in the judgment of the Issuer and the Guarantors, or in the opinion of counsel for the Underwriters, the Prospectus as supplemented would Offering Circular will not include an untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading; or , and (B) the Offering Circular will comply with Applicable Law, and (ii) if it is becomes necessary or advisable to amend or supplement the Prospectus or amend Offering Circular so that the Registration Statement (or to file under Offering Circular will contain all of the Exchange Act any document whichinformation specified in, upon filingand meet the requirements of, would become an Incorporated DocumentRule 144A(d)(4) in order to comply with of the Act, the Exchange Act forthwith to prepare an appropriate amendment or any other law, the Issuer and the Guarantors will promptly notify the Representatives of such event and forthwith prepare and, subject supplement to the provisions of paragraph Offering Circular (e) above, file with the Commission an appropriate supplement or amendment thereto (or to such document), in form and will expeditiously furnish substance satisfactory to the Underwriters and dealers a reasonable number of copies thereof. In the event Initial Purchasers) so that the Issuer and the Representatives agree that the Prospectus should be Offering Circular, as so amended or supplemented, will contain the Issuerinformation specified in, if requested by and meet the Representativesrequirements of, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplementsuch Rule.
(ge) Each of the Issuer and the Guarantors will: (i) To cooperate with the Underwriters Initial Purchasers and their the Initial Purchasers' counsel in connection with the registration or qualification of the Notes for offering and sale by the Underwriters and by dealers Securities under the securities or blue sky Blue Sky laws of such jurisdictions as the Underwriters Initial Purchasers may designate; (ii) maintain request and continue such qualifications qualification in effect so long as reasonably required for the distribution of the Notes; Exempt Resales, and (iii) to file such consents to service of process or other documents as may be necessary or appropriate in order to effect such registration or qualification; provided provided, that in no event shall neither the Issuer or nor any Guarantor shall be obligated required in connection therewith to file any general consent to service of process or to qualify to do business as a foreign corporation in any jurisdiction where it is not now so qualified or to take any action which would subject it itself to service taxation in respect of process in suits, other than those arising out of the offering or sale of the Notes, doing business in any jurisdiction where in which it is not now otherwise so subject.
(hf) Unless the Issuer Whether or the Guarantors have or shall have obtained the prior written consent not any of the RepresentativesTransactions are consummated or this Agreement is terminated, each to pay (i) all costs, expenses, fees and taxes incident to the performance of the obligations of the Issuer and the Guarantors has not made under this Agreement, including in connection with: (A) the preparation, printing and will not make distribution of the Preliminary Offering Circular and the Offering Circular and all amendments and supplements thereto (including, without limitation, financial statements and exhibits), including the mailing and delivering of copies thereof to the Initial Purchasers and persons designated by them in the quantities specified herein, and all preliminary and final Blue Sky memoranda and all other agreements, memoranda, correspondence and other documents prepared and delivered in connection herewith, (B) the printing, processing and distribution (including, without limitation, word processing and duplication costs) and delivery of, and performance under, each of the Operative Documents and any other agreements or documents in connection with the Offering, or the purchase, sale or delivery of the Securities, (C) the issuance and delivery of the Securities, including the fees and expenses of the Trustee, the Warrant Agent and the Collateral Agent (including fees and expenses of their respective counsel) and the cost of their respective personnel, and all costs and expenses related to the delivery of the Securities to the Initial Purchasers and pursuant to Exempt Resales, including any transfer or other taxes payable thereon, (D) the qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states (including, without limitation, filing fees and fees and disbursements of the Initial Purchasers' counsel relating to such registration or qualification and memoranda related thereto), (E) the Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to furnishing of such copies of the Preliminary Offering Circular and the Offering Circular, and all amendments and supplements thereto, as may reasonably be filed requested for use by the Issuer or Initial Purchasers, and (F) the Guarantors with the Commission or retained by the Issuer or the Guarantors under Rule 433; provided that the prior written consent preparation of the parties hereto shall be deemed to have been given in respect Securities, (ii) all fees and expenses of the Free Writing Prospectuses listed in Schedule II hereto counsel and any electronic road show. Any such free writing prospectus consented to by the Representatives or accountants of the Issuer and the Guarantors is hereinafter referred Guarantors, (iii) all expenses and listing fees in connection with the application for quotation of the Units, Notes and Warrants in The Portal Market ("PORTAL") of the National Association of Securities Dealers, Inc., (iv) all fees and expenses (including fees and expenses of counsel) of the Issuer in connection with approval of the Securities by DTC for "book-entry" transfer, (v) all fees charged by rating agencies in connection with the rating of the Notes, (vi) the costs and charges of any transfer agent, registrar and/or depositary (including DTC), (vii) all costs and expenses of the Exchange Offer, any Note Registration Statement and any Warrant Shelf Registration Statement, as set forth in the Note Registration Rights Agreement and the Warrant Registration Rights Agreement, and (viii) all fees and expenses (including reasonable fees and expenses of counsel) incurred by the Initial Purchasers in connection with the preparation, negotiation and execution of the Operative Documents and the consummation of the transactions contemplated thereby and all other costs and expenses incident and necessary to as a “Permitted Free Writing Prospectus.” Each the performance of the obligations of the Issuer and the Guarantors agrees thereunder for which provision is not otherwise made in this section.
(g) To use the proceeds from the sale of the Units in the manner described in the Offering Circular under the caption "Use of Proceeds."
(h) To the extent it may lawfully do so, not to insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension, usury or other law, wherever enacted, now or at any time hereafter in force, against the holders of any Securities or that would prohibit or forgive the payment of all or any portion of the principal of or interest on the Notes, or that may affect the covenants or the performance of the Operative Documents (x) and, to the extent it has treated may lawfully do so, the Issuer hereby expressly waives all benefit or advantage of any such law, and will treatcovenants that it shall not, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable by resort to any Permitted Free Writing Prospectussuch law, including hinder, delay or impede the execution of any power granted to the Warrant Agent in respect the Warrant Agreement, to the Trustee in the Indenture or to the Collateral Agent in the Security Documents but shall suffer and permit the execution of timely filing with the Commission, legending and record keepingevery such power as though no such law had been enacted).
(i) The Issuer To do and perform all things required to be done and performed under the Guarantors will make generally available Operative Documents prior to its security holders and after the Closing Date (including, without limitation, all things necessary and advisable to obtain (i) the consent of applicable Governmental Authorities (including, without limitation, under applicable gaming laws) to the granting or enforcement of the Security Interests and (ii) on the Closing Date, all termination statements, mortgage releases and other documents necessary to terminate the Liens (as defined in the Indenture) with respect to Indebtedness (as defined in the Indenture) that is being repaid with the net proceeds of the Offering (including without limitation Liens securing borrowings under the Existing Credit Facility) and to terminate the Underwriters as soon as practicable, but in no event later than fifteen (15) months after the end of the Parent’s current fiscal quarter, a consolidated earnings statement of the Parent, which need not be audited, covering a 12-month period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158Existing Credit Facility).
(j) Not to, and to ensure that no affiliate (as defined in Rule 501(b) of the Act) of the Issuer will, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) that would be integrated with the sale of the Securities in a manner that would require the registration under the Act of the sale to the Initial Purchasers or to the Eligible Initial Purchasers of any of the Securities.
(k) For so long as any of the Securities remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Act, during any period in which the Issuer and the Guarantors are not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to make available, upon request, to any holder of the Securities in connection with any sale thereof and any prospective Eligible Initial Purchaser of such Securities from such holder, the information required by Rule 144A(d)(4) under the Act.
(l) To obtain the approval of DTC for "book entry" transfer of the Notes and the Warrants as Units and as separate securities, and to comply with the representation letters of the Issuer to DTC relating to the approval of the Notes and the Warrants as Units and as separate securities, by DTC for "book entry" transfer.
(m) To use their respective reasonable best efforts to effect the inclusion of the Units, Notes and Warrants in PORTAL and to use their respective reasonable best efforts to maintain the listing of the Units, Notes and Warrants on PORTAL for so long as the Units, Notes and Warrants, respectively, are outstanding.
(n) For so long as any of the Securities are outstanding, and whether or not required to do so by the rules and regulations of the Commission, (i) to mail or make generally available as soon as practicable after the end of each fiscal year to the record holders of the Securities a financial report of the Issuer and its subsidiaries on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of stockholders' equity as of the end of and for such fiscal year, together with comparable information as of the end of and for the preceding year, certified by the Issuer's independent public accountants and (ii) to mail or make generally available as soon as practicable after the end of each quarterly period (except for the last quarterly period of each fiscal year) to such holders, a consolidated balance sheet, a consolidated statement of operations and a consolidated statement of cash flows (and similar financial reports of all unconsolidated subsidiaries, if any) as of the end of and for such period, and for the period from the beginning of such year to the close of such quarterly period, together with comparable information for the corresponding periods of the preceding year.
(o) For so long as any of the Securities are held by the Initial Purchasers, and whether or not required to do so by the rules and regulations of the Commission, to furnish to the Initial Purchasers as soon as available copies of all reports or other communications furnished by the Issuer or any of the Guarantors to its security holders or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Issuer or any of the Guarantors is listed and such other publicly available information concerning the Issuer and/or its subsidiaries as the Initial Purchasers may reasonably request.
(p) Except in connection with the Registered Exchange Offer or the filing of the Note Shelf Registration Statement or the Warrant Shelf Registration Statement, not to, and not to authorize or permit any person acting on their behalf to, (i) distribute any offering material in connection with the offer and sale of any of the Securities other than the Preliminary Offering Circular and the Offering Circular and any amendments and supplements to the Offering Circular prepared in compliance with Section 5(d) hereof, or (ii) solicit any offer to buy or offer to sell any of the Securities by means of any form of general solicitation or general advertising (including, without limitation, as such terms are used in Regulation D under the Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(q) During the period commencing beginning on the date hereof and ending on the date occurring three (3) years hereafterClosing Date, the Issuer and the Guarantors will furnish to the Underwriters: (i) as soon as available, if requested, a copy of each report of the Parent mailed to stockholders or filed with the Commission that is not publicly available on EXXXX or the Parent’s website; and (ii) from time to time such other information concerning the Issuer or the Guarantors as the Representatives may reasonably request.
(k) The Issuer and the Guarantors shall reimburse the Underwriters for reasonable out-of-pocket expenses (including the reasonable fees and expenses of counsel for the Underwriters) incurred by the Underwriters in connection herewith if this Agreement is terminated pursuant to any provisions hereof or if this Agreement is terminated by the Representatives because of any inability, failure or refusal on the part of the Issuer or the Guarantors to comply with the terms or fulfill any of the conditions of this Agreement.
(l) The Issuer will apply the net proceeds from the sale of the Notes in the manner specified in the Registration Statement, the Disclosure Package and the Prospectus under the heading “Use of Proceeds.”
(m) If Rule 430A, 430B or 430C is employed, the Issuer will timely file the Prospectus pursuant to Rule 424(b) and will advise the Representatives of the time and manner of such filing.
(n) Neither the Issuer nor any affiliate of the Issuer has taken, nor will the Issuer or any affiliate of the Issuer taketo, directly or indirectly, any action designed to, or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Issuer to facilitate the sale or resale of the Notes.
(o) The Parent will use its best efforts to continue to qualify as a real estate investment trust (a “REIT”) under the Internal Revenue Code of 1986, as amended, and the regulations and published interpretations thereunder (collectively, the “Code”), so long as its Board of Directors deems it in the best interest of the Parent’s stockholders to remain so qualified.
(p) Each of the Issuer and the Guarantors will use all reasonable best efforts to do or perform all things required to be done or performed by the Issuer and the Guarantors prior to the Closing Date to satisfy all conditions precedent to the delivery of the Notes pursuant to this Agreement.
(q) Neither the Issuer nor the Guarantors will, without the prior written consent of the RepresentativesInitial Purchasers, offer, sell, contract to sell, pledge or otherwise dispose (or announce any offer, sale, grant of any option to purchase or enter into other disposition) of any transaction that is designed tosecurities of the Issuer (including any Common Stock of the Issuer) or the Guarantors, or might reasonably be expected toany warrants, result in the disposition (whether by actual disposition rights or effective economic disposition due options to cash settlement purchase or otherwise) by the Issuer or the Guarantors or any affiliate otherwise acquire Common Stock of the Issuer or the Guarantors, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position (within the meaning of Section 16 securities of the Exchange Act), on Issuer or any debt securities or guarantees thereon Guarantor substantially similar to any of the Securities (other than (i) the Units, (ii) the Notes and the Guarantees, (iii) the Warrants, (iv) commercial paper issued in the ordinary course of business); or publicly announce an intention , and (v) the issuance of Common Stock to effect any such transaction, until after holders of employee stock options outstanding prior to the Closing Datedate hereof.
(r) Each of For so long as the Initial Purchasers shall hold any Securities, to notify the Initial Purchasers promptly in writing if the Issuer and the Guarantors will comply or any of its Affiliates becomes a party in interest or a disqualified person with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Sxxxxxxx-Xxxxx Act of 2002 (the “Sxxxxxxx-Xxxxx Act”), and will use its reasonable best efforts respect to cause its directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sxxxxxxx-Xxxxx Act.
(s) The Issuer and the Guarantors will file any Issuer Free Writing Prospectus to the extent required by Rule 433 within the time period required by such ruleemployee benefit plan. The Issuer will retain, pursuant to reasonable procedures developed terms "ERISA," "Affiliates," "party in good faith, copies of each Issuer Free Writing Prospectus that is not filed with interest," "disqualified person" and "employee benefit plan" shall have the Commission meanings as set forth in accordance with Rule 433(g)Section 6(bb) hereof.
Appears in 1 contract
Agreements of the Issuer and the Guarantors. The Issuer and the Guarantors, jointly and severally, agree with each Underwriter of the Initial Purchasers as follows:
(a) If, at The Issuer and the time this Agreement is executed and delivered, it is necessary for a post-effective amendment Guarantors will furnish to the Registration Statement to be declared effective before the offering Initial Purchasers, without charge, within one business day of the date of the Offering Memorandum, such number of copies of the Offering Memorandum as may then be amended or supplemented as they may reasonably request.
(b) Prior to the sale of Notes may commenceand Guarantees hereunder, each of the Issuer and the Guarantors will use its best efforts to cause such post-effective amendment to become effective as soon as possible prepare the Offering Memorandum in a form approved by the Initial Purchasers and will advise not make any amendment or supplement to the Representatives promptly and, if requested by Pricing Disclosure Package or to the Representatives, will confirm such advice in writing, immediately Offering Memorandum of which the Initial Purchasers shall not previously have been advised and to which they shall reasonably object after such post-effective amendment has become effectivebeing so advised.
(bc) The Issuer and each of the Guarantors consents to the use of the Pricing Disclosure Package and the Offering Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to the filing completion of the Prospectus pursuant distribution of the Notes by the Initial Purchasers to Rule 424(b)Eligible Purchasers, any event occurs as a result or information becomes known that, in the judgment of which the Issuer or any of the Guarantors or in the opinion of counsel for the Initial Purchasers, should be set forth in the Pricing Disclosure Package would (x) or the Offering Memorandum so that the Pricing Disclosure Package or the Offering Memorandum, as then amended or supplemented, does not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing, not misleading or (y) conflict with the information contained in the Registration Statement, the Issuer and the Guarantors will (i) notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement, omission or conflicting information; and (iii) supply any amendment or supplement to the Representatives in such quantities as may be reasonably requested.
(c) The Issuer and the Guarantors will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing: (i) of any review, issuance of comments or request by the Commission or its staff on or for an amendment of or a supplement to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information regarding the Issuer, the Guarantors, their respective affiliates or any filings with the Commission, whether or not such filings are incorporated by reference into the Registration Statement, any Preliminary Prospectus or the Prospectus; (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Notes for offering or sale in any jurisdiction or the initiation of any proceeding for such purpose or any examination pursuant to Section 8(e) of the Act relating to the Registration Statement or Section 8A of the Act in connection with the offering of the Notes; (iii) of the receipt by the Issuer or any Guarantor of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose; and (iv) within the period of time referred to in the first sentence in subsection (f) below, of any change in the Issuer’s or any Guarantor’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which results in any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) being untrue or which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Issuer and the Guarantors will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
(d) On request, the Issuer and the Guarantors will furnish to the Representatives and counsel to the Underwriters, without charge: (i) one (1) signed copy of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits to the Registration Statement; (ii) such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto, but without exhibits, as the Representatives may request; (iii) such number of copies of the Incorporated Documents, without exhibits, as the Representatives may request; and (iv) one (1) copy of the exhibits to the Incorporated Documents.
(e) Neither the Issuer nor any Guarantor will file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in the first sentence in subsection (f) below, file any document which upon filing becomes an Incorporated Document, of which the Representatives shall not previously have been advised or to which, after the Representatives shall have received a copy of the document proposed to be filed, the Representatives shall reasonably object; and no such further document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Each of , or if it is necessary to supplement or amend the Pricing Disclosure Package or the Offering Memorandum in order to comply with any law, the Issuer and the Guarantors will give the Representatives notice of its intention forthwith prepare an appropriate supplement or amendment thereto, and will, subject to make any other filing pursuant clause (b) above, expeditiously furnish to the Exchange Act from the Applicable Time to the Closing Time Initial Purchasers and will furnish the Representatives with copies of any such documents dealers a reasonable amount number of time prior to such proposed filingcopies thereof.
(fe) After the execution and delivery of this Agreement and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered (or in lieu thereof, the notice referred to in Rule 173(a)) in connection with sales by the Underwriters or any dealer (including circumstances where such requirement may be satisfied pursuant to Rule 172), each None of the Issuer and nor any Guarantor will make any offer to sell or solicitation of an offer to buy the Guarantors will file promptly all reports and any definitive proxy or information statements required to be filed by Notes that would constitute a Free Writing Offering Document without the Issuer or the Guarantors with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) prior consent of the Exchange Act and will expeditiously deliver to the Underwriters and each dealerRepresentative, without charge, as many copies which consent shall not be unreasonably withheld or delayed. If at any time following issuance of the Prospectus (and of any amendment or supplement thereto), any Preliminary Prospectus and any Issuer a Free Writing Prospectus as each Underwriter may request. Each of the Issuer and the Guarantors consents to the use of the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or blue sky laws of the jurisdictions in which the Notes are offered by the Underwriters and by all dealers to whom Notes may be sold, both in connection with the offering and sale of the Notes and for such period of time thereafter as the Prospectus is required by the Act to be delivered (or in lieu thereof, the notice referred to in Rule 173(a)) in connection with sales by the Underwriters or any dealers. If during such period of time: (i) Offering Document any event shall occur occurred or occurs as a result of which, which such Free Writing Offering Document conflicts with the information in the judgment of Preliminary Offering Memorandum, the Issuer and Pricing Disclosure Package or the GuarantorsOffering Memorandum or, or when taken together with the information in the opinion of counsel for the UnderwritersPreliminary Offering Memorandum, the Prospectus as supplemented would include Pricing Disclosure Package or the Offering Memorandum, includes an untrue statement of a material fact or omit omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserthen prevailing, not misleading, as promptly as practicable after becoming aware thereof, the Issuer will give notice thereof to the Initial Purchasers through the Representative and, if requested by the Representative, will prepare and furnish without charge to each Initial Purchaser a Free Writing Offering Document or other document which will correct such conflict, statement or omission.
(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; or provided that in connection therewith the Issuer shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) if file a general consent to service of process in any such jurisdiction, or (iii) subject itself to taxation in any jurisdiction in which it is necessary to supplement would not otherwise be subject.
(g) For a period commencing on the Prospectus or amend date hereof and ending on the Registration Statement (or to file under 60th day after the Exchange Act any document which, upon filing, would become an Incorporated Document) in order to comply with date of the Act, the Exchange Act or any other lawOffering Memorandum, the Issuer and the Guarantors will promptly notify agree not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the Representatives disposition by any person at any time in the future of) any debt securities of such event and forthwith prepare and, subject the Company or the Issuer substantially similar to the provisions Notes or securities convertible into or exchangeable for such debt securities of paragraph (e) above, file with the Commission an appropriate supplement Company or amendment thereto (or to such document), and will expeditiously furnish to the Underwriters and dealers a reasonable number of copies thereof. In the event that the Issuer and the Representatives agree that the Prospectus should be amended or supplemented, the Issuer, if requested by or sell or grant options, rights or warrants with respect to such debt securities of the RepresentativesCompany or the Issuer or securities convertible into or exchangeable for such debt securities of the Company or the Issuer, will promptly issue a press release announcing (ii) enter into any swap or disclosing other derivatives transaction that transfers to another, in whole or in part, any of the matters economic benefits or risks of ownership of such debt securities of the Company or the Issuer (other than any swap or derivative transaction with respect to the Notes), whether any such transaction described in clause (i) or (ii) above is to be covered settled by delivery of debt securities of the proposed amendment Company or supplementthe Issuer or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company or the Issuer substantially similar to the Notes or securities convertible, exercisable or exchangeable into debt securities of the Company or the Issuer, or (iv) publicly announce an offering of any debt securities of the Company or the Issuer substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each case without the prior written consent of the Barclays Capital Inc., on behalf of the Initial Purchasers, except (i) in exchange for the Exchange Notes and the Exchange Guarantees in connection with the Exchange Offer, (ii) in connection with an exchange offer of registered securities for the Existing DSS Notes and the related guarantees or (iii) in connection with an exchange offer of registered securities for the Issuer’s existing 5.375% Senior Notes due 2022 and the related guarantees.
(gh) Each So long as any of the Notes are outstanding, the Issuer and the Guarantors will: (i) cooperate with , furnish at their expense to the Underwriters and their counsel in connection with Initial Purchasers, and, upon request, to the registration or qualification holders of the Notes for offering and sale prospective purchasers of the Notes the information required by the Underwriters and by dealers Rule 144A(d)(4) under the securities or blue sky laws of Securities Act (if any) unless such jurisdictions as the Underwriters may designate; (ii) maintain such qualifications in effect so long as required for the distribution of the Notes; and (iii) file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided that in no event shall the Issuer or any Guarantor be obligated to qualify to do business in any jurisdiction where it information is not now so qualified or to take any action which would subject it to service of process in suits, other than those arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject.
(h) Unless the Issuer or the Guarantors have or shall have obtained the prior written consent of the Representatives, each of the Issuer and the Guarantors has not made and will not make any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Issuer or the Guarantors with the Commission or retained by the Issuer or the Guarantors under Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses listed in Schedule II hereto and any electronic road show. Any such free writing prospectus consented to by the Representatives or the Issuer and the Guarantors is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Issuer and the Guarantors agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keepingpublicly available.
(i) The Issuer and the Guarantors will make generally available to its security holders and to the Underwriters as soon as practicable, but in no event later than fifteen (15) months after the end of the Parent’s current fiscal quarter, a consolidated earnings statement of the Parent, which need not be audited, covering a 12-month period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158.
(j) During the period commencing on the date hereof and ending on the date occurring three (3) years hereafter, the Issuer and the Guarantors will furnish to the Underwriters: (i) as soon as available, if requested, a copy of each report of the Parent mailed to stockholders or filed with the Commission that is not publicly available on EXXXX or the Parent’s website; and (ii) from time to time such other information concerning the Issuer or the Guarantors as the Representatives may reasonably request.
(k) The Issuer and the Guarantors shall reimburse the Underwriters for reasonable out-of-pocket expenses (including the reasonable fees and expenses of counsel for the Underwriters) incurred by the Underwriters in connection herewith if this Agreement is terminated pursuant to any provisions hereof or if this Agreement is terminated by the Representatives because of any inability, failure or refusal on the part of the Issuer or the Guarantors to comply with the terms or fulfill any of the conditions of this Agreement.
(l) The Issuer will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the manner specified in the Registration Statement, the Pricing Disclosure Package and the Prospectus Offering Memorandum under the heading caption “Use of Proceeds.”
(mj) If The Issuer and the Guarantors agree not to solicit any offer to buy or sell the Notes by means of any form of general solicitation or general advertising (as those terms are defined in Regulation D under the Securities Act), or by means of any directed selling efforts (as defined in Rule 430A, 430B or 430C is employed, 902 under the Issuer will timely file Securities Act and the Prospectus Commission’s Release No. 33-6863) in the United States in connection with any Notes being offered and sold pursuant to Rule 424(b) and will advise Regulation S under the Representatives of the time and manner of such filingSecurities Act.
(nk) Neither The Issuer, the Issuer nor any affiliate of the Issuer has taken, nor Guarantors and their respective affiliates will the Issuer or any affiliate of the Issuer not take, directly or indirectly, any action designed to, to or that might has constituted or that reasonably could be expected to cause or result in, under in the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Issuer or the Guarantors in connection with the offering of the Notes.
(l) The Issuer and the Guarantors will use their reasonable best efforts to facilitate permit the Notes to be eligible for clearance and settlement through DTC.
(m) The Issuer and the Guarantors will not, and will not permit any of their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been acquired by any of them, except for Notes purchased by the Issuer, the Guarantors or any of their respective affiliates and resold in a transaction registered under the Securities Act.
(n) The Issuer and the Guarantors agree not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would be integrated with the sale of the Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or resale the Eligible Purchasers of the Notes.
(o) The Parent will use its best efforts to continue to qualify as a real estate investment trust (a “REIT”) under the Internal Revenue Code of 1986, as amended, Issuer and the regulations Guarantors agree to comply with all the terms and published interpretations thereunder (collectively, conditions of the “Code”), so long as its Board of Directors deems it Registration Rights Agreement and all agreements set forth in the best interest of the Parent’s stockholders to remain so qualified.
(p) Each representation letters of the Issuer and the Guarantors to DTC relating to the approval of the Notes by DTC for “book entry” transfer.
(p) The Issuer will use all reasonable best efforts indemnify and hold harmless the Initial Purchasers in their capacities as such against any documentary, stamp or similar issuance tax, including any interest and penalties imposed thereon, on the creation, issuance and sale of the Notes and on the execution and delivery of this Agreement. All payments to be made by the Issuer hereunder shall be made without any withholding or deduction from or through which payment is made for or on account of any present or future taxes, duties or governmental charges whatsoever unless the Issuer is compelled by law to deduct or withhold such taxes, duties or charges. In that event, the Issuer shall pay such additional amounts as may be necessary in order that the net amounts received after such withholding or deduction shall equal the amounts that would have been received if no withholding or deduction had been made.
(q) The Issuer and the Guarantors will do or and perform all things required or necessary to be done or and performed under this Agreement by the Issuer and the Guarantors them prior to the Closing Date Date, and to satisfy all conditions precedent to the delivery of Initial Purchasers’ obligations hereunder to purchase the Notes pursuant to this AgreementNotes.
(q) Neither the Issuer nor the Guarantors will, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge or otherwise dispose of or enter into any transaction that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Issuer or the Guarantors or any affiliate of the Issuer or the Guarantors, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position (within the meaning of Section 16 of the Exchange Act), on any debt securities or guarantees thereon (other than the Notes and the Guarantees); or publicly announce an intention to effect any such transaction, until after the Closing Date.
(r) Each of the Issuer and the Guarantors will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Sxxxxxxx-Xxxxx Act of 2002 (the “Sxxxxxxx-Xxxxx Act”), and will use its reasonable best efforts to cause its directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sxxxxxxx-Xxxxx Act.
(s) The Issuer and the Guarantors will file any Issuer Free Writing Prospectus to the extent required by Rule 433 within the time period required by such rule. The Issuer will retain, pursuant to reasonable procedures developed in good faith, copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433(g).
Appears in 1 contract
Samples: Purchase Agreement (Cott Corp /Cn/)
Agreements of the Issuer and the Guarantors. The Issuer and the Guarantors, jointly and severally, agree with each Underwriter as follows:
(a) If, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Notes may commence, each of the Issuer and the Guarantors will use its best efforts to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, immediately after such post-effective amendment has become effective.
(b) If, at any time prior to the filing of the Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would (x) include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing, not misleading or (y) conflict with the information contained in the Registration Statement, the Issuer and the Guarantors will (i) notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement, omission or conflicting information; and (iii) supply any amendment or supplement to the Representatives in such quantities as may be reasonably requested.
(c) The Issuer and the Guarantors will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing: (i) of any review, issuance of comments or request by the Commission or its staff on or for an amendment of or a supplement to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information regarding the Issuer, the Guarantors, their respective affiliates or any filings with the Commission, whether or not such filings are incorporated by reference into the Registration Statement, any Preliminary Prospectus or the Prospectus; (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Notes for offering or sale in any jurisdiction or the initiation of any proceeding for such purpose or any examination pursuant to Section 8(e) of the Act relating to the Registration Statement or Section 8A of the Act in connection with the offering of the Notes; (iii) of the receipt by the Issuer or any Guarantor of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose; and (iv) within the period of time referred to in the first sentence in subsection (f) below, of any change in the Issuer’s or any Guarantor’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which results in any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) being untrue or which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Issuer and the Guarantors will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
(d) On request, the Issuer and the Guarantors will furnish to the Representatives and counsel to the Underwriters, without charge: (i) one (1) signed copy of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits to the Registration Statement; (ii) such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto, but without exhibits, as the Representatives may request; (iii) such number of copies of the Incorporated Documents, without exhibits, as the Representatives may request; and (iv) one (1) copy of the exhibits to the Incorporated Documents.
(e) Neither the Issuer nor any Guarantor will file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in the first sentence in subsection (f) below, file any document which upon filing becomes an Incorporated Document, of which the Representatives shall not previously have been advised or to which, after the Representatives shall have received a copy of the document proposed to be filed, the Representatives shall reasonably object; and no such further document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of the Issuer and the Guarantors will give the Representatives notice of its intention to make any other filing pursuant to the Exchange Act from the Applicable Time to the Closing Time and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing.
(f) After the execution and delivery of this Agreement and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered (or in lieu thereof, the notice referred to in Rule 173(a)) in connection with sales by the Underwriters or any dealer (including circumstances where such requirement may be satisfied pursuant to Rule 172), each of the Issuer and the Guarantors will file promptly all reports and any definitive proxy or information statements required to be filed by the Issuer or the Guarantors with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act and will expeditiously deliver to the Underwriters and each dealer, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto), any Preliminary Prospectus and any Issuer Free Writing Prospectus as each Underwriter may request. Each of the Issuer and the Guarantors consents to the use of the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or blue sky laws of the jurisdictions in which the Notes are offered by the Underwriters and by all dealers to whom Notes may be sold, both in connection with the offering and sale of the Notes and for such period of time thereafter as the Prospectus is required by the Act to be delivered (or in lieu thereof, the notice referred to in Rule 173(a)) in connection with sales by the Underwriters or any dealers. If during such period of time: (i) any event shall occur as a result of which, in the judgment of the Issuer and the Guarantors, or in the opinion of counsel for the Underwriters, the Prospectus as supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading; or (ii) if it is necessary to supplement the Prospectus or amend the Registration Statement (or to file under the Exchange Act any document which, upon filing, would become an Incorporated Document) in order to comply with the Act, the Exchange Act or any other law, the Issuer and the Guarantors will promptly notify the Representatives of such event and forthwith prepare and, subject to the provisions of paragraph (e) above, file with the Commission an appropriate supplement or amendment thereto (or to such document), and will expeditiously furnish to the Underwriters and dealers a reasonable number of copies thereof. In the event that the Issuer and the Representatives agree that the Prospectus should be amended or supplemented, the Issuer, if requested by the Representatives, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplement.
(g) Each of the Issuer and the Guarantors will: (i) cooperate with the Underwriters and their counsel in connection with the registration or qualification of the Notes for offering and sale by the Underwriters and by dealers under the securities or blue sky laws of such jurisdictions as the Underwriters may designate; (ii) maintain such qualifications in effect so long as required for the distribution of the Notes; and (iii) file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided that in no event shall the Issuer or any Guarantor be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than those arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject.
(h) Unless the Issuer or the Guarantors have or shall have obtained the prior written consent of the Representatives, each of the Issuer and the Guarantors has not made and will not make any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Issuer or the Guarantors with the Commission or retained by the Issuer or the Guarantors under Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses listed in Schedule II hereto and any electronic road show. Any such free writing prospectus consented to by the Representatives or the Issuer and the Guarantors is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Issuer and the Guarantors agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Issuer and the Guarantors will make generally available to its security holders and to the Underwriters as soon as practicable, but in no event later than fifteen (15) months after the end of the Parent’s current fiscal quarter, a consolidated earnings statement of the Parent, which need not be audited, covering a 12-month period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158.
(j) During the period commencing on the date hereof and ending on the date occurring three (3) years hereafter, the Issuer and the Guarantors will furnish to the Underwriters: (i) as soon as available, if requested, a copy of each report of the Parent mailed to stockholders or filed with the Commission that is not publicly available on EXXXX or the Parent’s website; and (ii) from time to time such other information concerning the Issuer or the Guarantors as the Representatives may reasonably request.
(k) The Issuer and the Guarantors shall reimburse the Underwriters for reasonable out-of-pocket expenses (including the reasonable fees and expenses of counsel for the Underwriters) incurred by the Underwriters in connection herewith if this Agreement is terminated pursuant to any provisions hereof or if this Agreement is terminated by the Representatives because of any inability, failure or refusal on the part of the Issuer or the Guarantors to comply with the terms or fulfill any of the conditions of this Agreement.
(l) The Issuer will apply the net proceeds from the sale of the Notes in the manner specified in the Registration Statement, the Disclosure Package and the Prospectus under the heading “Use of Proceeds.”
(m) If Rule 430A, 430B or 430C is employed, the Issuer will timely file the Prospectus pursuant to Rule 424(b) and will advise the Representatives of the time and manner of such filing.
(n) Neither the Issuer nor any affiliate of the Issuer has taken, nor will the Issuer or any affiliate of the Issuer take, directly or indirectly, any action designed to, or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Issuer to facilitate the sale or resale of the Notes.
(o) The Parent will use its best efforts to continue to qualify as a real estate investment trust (a “REIT”) under the Internal Revenue Code of 1986, as amended, and the regulations and published interpretations thereunder (collectively, the “Code”), so long as its Board of Directors deems it in the best interest of the Parent’s stockholders to remain so qualified.
(p) Each of the Issuer and the Guarantors will use all reasonable best efforts to do or perform all things required to be done or performed by the Issuer and the Guarantors prior to the Closing Date to satisfy all conditions precedent to the delivery of the Notes pursuant to this Agreement.
(q) Neither the Issuer nor the Guarantors willwill , without the prior written consent of the Representatives, offer, sell, contract to sell, pledge or otherwise dispose of or enter into any transaction that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Issuer or the Guarantors or any affiliate of the Issuer or the Guarantors, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position (within the meaning of Section 16 of the Exchange Act), on any debt securities or guarantees thereon (other than the Notes and the Guarantees); or publicly announce an intention to effect any such transaction, until after the Closing Date.
(r) Each of the Issuer and the Guarantors will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Sxxxxxxx-Xxxxx Act of 2002 (the “Sxxxxxxx-Xxxxx Act”), and will use its reasonable best efforts to cause its directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sxxxxxxx-Xxxxx Act.
(s) The Issuer and the Guarantors will file any Issuer Free Writing Prospectus to the extent required by Rule 433 within the time period required by such rule. The Issuer will retain, pursuant to reasonable procedures developed in good faith, copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433(g).
Appears in 1 contract
