Agreements of the Issuer. The Issuer covenants and agrees with the ------------------------ Initial Purchasers as follows: (a) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers, without charge, with as many copies of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request. The Issuer consents to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, by the Initial Purchasers in connection with Exempt Resales. (b) Not to amend or supplement the Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement (including any document to be incorporated by reference) at least two business days prior to the proposed use, and shall not have reasonably objected to such amendment or supplement. (c) If, prior to the time that the Initial Purchasers have completed their distribution of the Original Notes, any event occurs as a result of which, in the judgment of the Issuer or in the judgment of counsel to the Initial Purchasers, the Offering Memorandum, as then amended or supplemented, would include an untrue statement of material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, or it is necessary to amend or supplement the Offering Memorandum to comply with any applicable laws, the Issuer shall promptly notify the Initial Purchasers of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Offering Memorandum that will correct such statement or omission or effect such compliance. (d) To cooperate with the Initial Purchasers and counsel to the Initial Purchasers in connection with the qualification or registration of the Original Notes under the securities laws of such jurisdictions as the Initial Purchasers may reasonably request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, the Issuer shall not be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to file a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject. (e) To advise the Initial Purchasers promptly and, if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuer shall use its reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any of the Original Notes under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes under any securities laws, the Issuer shall use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time. (f) Whether or not the transactions contemplated by this Agreement are consummated, to pay all costs, expenses, fees, disbursements (including fees, expenses and disbursements of counsel to the Issuer) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum (including, without limitation, financial statements) and all amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuer and the Initial Purchasers in connection with any meetings with prospective investors in the Original Notes, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery of the Original Notes by the Issuer to the Initial Purchasers, (v) the qualification or registration of the Notes for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (vi) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vii) the preparation of certificates for the Notes, (viii) the application for quotation of the Notes in The Portal Market ("Portal") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes by rating agencies, (xi) the fees and expenses of the Trustee and its counsel and (xii) the performance by the Issuer of its other obligations under the Note Documents. (g) To use the proceeds from the sale of the Original Notes in the manner described in the Offering Memorandum under the caption "Use of Proceeds." (h) To do and perform all things required to be done and performed under this Agreement by it prior to or after the Closing Date and to satisfy all conditions precedent on its part to the delivery of the Original Notes. (i) Not to, and not to permit any of its subsidiaries (i) to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers or any Eligible Purchasers, or (ii) for a period of 90 days after the Closing Date, without the prior written consent of UBS Warburg, to sell, offer for sale or solicit offers to buy any debt securities with a term of one year or longer; provided that, an assumption of debt previously outstanding at an acquired company (and not issued in contemplation of such acquisition) and otherwise permitted under the terms of the Indenture, will not be deemed to violate clause (ii) hereof. (j) Not to, and to use its reasonable best efforts to cause its affiliates (as defined in Rule 144 under the Act) not to, resell any of the Original Notes that have been reacquired by any of them. (k) Not to engage, not to allow any of its subsidiaries to engage, and to use its reasonable best efforts to cause its other affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Issuer makes no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Notes. (l) Not to engage, not to allow any of its subsidiaries to engage, and to use its reasonable best efforts to cause its other affiliates and any person acting on its behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Issuer makes no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S. (m) During the period of three years after the Closing Date, to furnish to the Initial Purchasers copies of such financial statements and other periodic and special reports as the Issuer may from time to time distribute generally to holders of any class of its capital stock or file with the Commission, Nasdaq or any national securities exchange, and to furnish to each Initial Purchaser who so requests a copy of each annual or other report it is required to file therewith. (n) From and after the Closing Date, for so long as any of the Notes remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Act and during any period in which the Issuer is 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 the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes in connection with any sale of such Notes and (ii) any prospective purchaser of such Notes from any such holder or beneficial owner designated by the holder or beneficial owner. The Issuer will pay the expenses of printing and distributing such documents. (o) To comply with all of its agreements set forth in the Registration Rights Agreement. (p) To comply with all of its obligations set forth in the representations letter of the Issuer to DTC relating to the approval of the Notes by DTC for "book-entry" transfer and to use its best efforts to obtain approval of the Notes by DTC for "book-entry" transfer. (q) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been prepared by the Issuer, a copy of any regularly prepared internal financial statements of the Issuer and the Guarantors for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) all other reports and other communications (financial or otherwise) that the Issuer mails or otherwise makes available to its security holders and (iii) such other information as the Initial Purchasers shall reasonably request. (r) Not to distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandum. (s) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940. (t) In connection with the offering, until the Initial Purchasers shall have notified the Issuer of the completion of the resale of the Notes, not to, and not to permit any of its affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other Persons, bid for or purchase for any account in which it or any of its affiliates has a beneficial interest; and neither the Issuer nor any of its affiliates will make bids or purchases for the purpose of creating actual or apparent active trading in, or of raising the price of, the Notes. (u) To use its reasonable best efforts to effect the inclusion of the Original Notes in Portal.
Appears in 1 contract
Samples: Purchase Agreement (Entravision Communications Corp)
Agreements of the Issuer. The Issuer covenants and agrees with the ------------------------ Initial Purchasers as followsForward Sellers, Forward Counterparties and several Underwriters that:
(a) To furnish Prior to the Initial Purchasers and those persons identified by the Initial Purchasers, without charge, with as many copies termination of the offering of the Securities, the Issuer will not file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Offering Memorandum Prospectus) to the Base Prospectus (excluding any documents incorporated by reference therein) unless the Issuer has furnished you a copy of such amendment or supplement for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. The Issuer will cause the Offering MemorandumFinal Prospectus, properly completed, and any amendments or supplements thereto, as supplement thereto to be filed in a form approved by the Initial Purchasers may reasonably requestForward Sellers and the Representatives with the SEC pursuant to the applicable paragraph of Rule 424(b) under the Securities Act within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Issuer consents will promptly advise the Forward Sellers and the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the SEC pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective (other than any documents incorporated by reference therein), (iii) of any request by the SEC or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Issuer of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Preliminary Offering Memorandum and Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the Offering Memorandumwithdrawal of such stop order or relief from such occurrence or objection, and any amendments and supplements thereto required pursuant to this Agreementincluding, if necessary, by filing an amendment to the Initial Purchasers in connection with Exempt Resales.Registration Statement or a new registration statement and using its reasonable best efforts to have such amendment or new registration statement declared effective as soon as practicable;
(b) Not to amend or supplement the Offering Memorandum If, at any time prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement (including any document to be incorporated by reference) at least two business days prior to the proposed use, and shall not have reasonably objected to such amendment or supplement.
(c) If, prior to the time that the Initial Purchasers have completed their distribution filing of the Original NotesFinal Prospectus pursuant to Rule 424(b) under the Securities Act, any event occurs as a result of which, in which the judgment of the Issuer or in the judgment of counsel to the Initial Purchasers, the Offering Memorandum, as then amended or supplemented, Disclosure Package would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they are madewere made or the circumstances then prevailing not misleading, the Issuer will (i) notify promptly the Forward Sellers and 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 or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request;
(c) If, at any time when a prospectus relating to the Securities is required to be delivered under the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it is shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Offering Memorandum Final Prospectus to comply with any applicable lawsthe Securities Act or the Exchange Act, including in connection with use or delivery of the Final Prospectus, the Issuer shall promptly will (i) notify the Initial Purchasers Forward Sellers and the Representatives of any such event event, (ii) prepare and (file with the SEC, subject to the second sentence of paragraph (a) of this Section 4(b)) prepare 6, an appropriate amendment or supplement to the Offering Memorandum that or new registration statement which will correct such statement or omission or effect such compliance.compliance (iii) use its reasonable best efforts to have any amendment to the Registration Statement, or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to you in such quantities as you may reasonably request;
(d) To cooperate with As soon as practicable, the Initial Purchasers Issuer will make generally available to its security holders, the Forward Sellers and to the Representatives an earnings statement or statements of the Issuer and its subsidiaries which will satisfy the provisions of Section 9(a) and Rule 158 under the Securities Act;
(e) The Issuer will furnish to the Forward Sellers, counsel to the Initial Purchasers Forward Sellers, the Representatives and counsel for the Underwriters, without charge, copies (which may be electronic copies) of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by a Forward Seller, Underwriter or dealer may be required by the Securities Act (including in connection with circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Forward Sellers and the Representatives may reasonably request. The Issuer will pay the expenses of printing, if any, or other production of all documents relating to the offering;
(f) The Issuer will use its commercially reasonable efforts to arrange, if necessary, for the qualification or registration of the Original Notes Securities for sale under the securities laws of any U.S. jurisdiction that the Representatives may designate and will use its commercially reasonable efforts to maintain such jurisdictions as the Initial Purchasers may reasonably request and to continue such qualification qualifications in effect so long as required for the Exempt Resales. Notwithstanding distribution of the foregoing, Securities; provided that in no event shall the Issuer shall not be required obligated to qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to file a general consent take any action that would subject it to service of process in any such jurisdiction suits, other than those arising out of the offering or sale of the Securities, or subject itself it or its subsidiaries to taxation taxation, in excess of a nominal dollar amount each case, in any such jurisdiction where it is not then now so subject.
(e) To advise the Initial Purchasers promptly and, if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuer shall use its reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any of the Original Notes under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes under any securities laws, the Issuer shall use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(f) Whether or not the transactions contemplated by this Agreement are consummated, to pay all costs, expenses, fees, disbursements (including fees, expenses and disbursements of counsel to the Issuer) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum (including, without limitation, financial statements) and all amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuer and the Initial Purchasers in connection with any meetings with prospective investors in the Original Notes, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery of the Original Notes by the Issuer to the Initial Purchasers, (v) the qualification or registration of the Notes for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (vi) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vii) the preparation of certificates for the Notes, (viii) the application for quotation of the Notes in The Portal Market ("Portal") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes by rating agencies, (xi) the fees and expenses of the Trustee and its counsel and (xii) the performance by the Issuer of its other obligations under the Note Documents.;
(g) To use the proceeds from the sale of the Original Notes in the manner described in the Offering Memorandum under the caption "Use of Proceeds."
(h) To do and perform all things required to be done and performed under this Agreement by it prior to or after the Closing Date and to satisfy all conditions precedent on its part to the delivery of the Original Notes.
(i) Not to, and not to permit any of its subsidiaries (i) to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers or any Eligible Purchasers, or (ii) for a period of 90 days after the Closing DateThe Issuer will not, without the prior written consent of UBS Warburgthe Representatives, offer, sell, contract to sell, offer for sale pledge, or solicit offers otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to buy cash settlement or otherwise) by the Issuer or any debt securities with a term of one year or longer; provided that, an assumption of debt previously outstanding at an acquired company (and not issued in contemplation of such acquisition) and otherwise permitted under the terms affiliate of the Indenture, will not be deemed to violate clause (ii) hereof.
(j) Not to, and to use its reasonable best efforts to cause its affiliates (as defined Issuer or any person in Rule 144 under privity with the Act) not to, resell Issuer or any affiliate of the Original Notes that have been reacquired by any of them.
Issuer), directly or indirectly, including the filing (k) Not to engage, not to allow any of its subsidiaries to engage, and to use its reasonable best efforts to cause its other affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Issuer makes no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes participation in the United States prior to the effectiveness filing) of a registration statement with the SEC in respect to the Notes.
(l) Not to engageof, not to allow any of its subsidiaries to engage, and to use its reasonable best efforts to cause its other affiliates and any person acting on its behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Issuer makes no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) During the period of three years after the Closing Date, to furnish to the Initial Purchasers copies of such financial statements and other periodic and special reports as the Issuer may from time to time distribute generally to holders of any class of its capital stock or file with the Commission, Nasdaq establish or any national securities exchange, and to furnish to each Initial Purchaser who so requests increase a copy of each annual put equivalent position or other report it is required to file therewith.
(n) From and after the Closing Date, for so long as any of the Notes remain outstanding and are "restricted securities" liquidate or decrease a call equivalent position within the meaning of Rule 144(a)(3Section 16 of the Exchange Act, any other shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock; or publicly announce an intention to effect any such transaction, for a period of 60 days after the date of this Underwriting Agreement, provided, however, that (i) under the Act and during any period Operating Partnership may issue OP Units as consideration in which the acquisition of one or more properties; (ii) the Issuer is not subject may issue shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock pursuant to Section 13 any director or 15(d) employee equity incentive plan of the Securities Exchange Act Issuer described in the Registration Statement, the Disclosure Package and the Final Prospectus; (iii) the Issuer may file one or more registration statements on Form S-8 with respect to any director or employee equity incentive plan of 1934the Issuer referred to in the Registration Statement, as amended the Disclosure Package and the Final Prospectus; (iv) the "Exchange Act")Issuer may enter into and issue and deliver Common Stock pursuant to the Forward Sales Agreements; (v) the Issuer may file prospectus supplements (including any amendments or supplements thereto) in connection with existing contractual agreements, provided that the black-out periods indicated in such contractual agreements shall be in effect; and (vi) the Issuer may issue (x) Common Stock or securities convertible into or exchangeable or exercisable for shares of Common Stock in the aggregate not to make available exceed 10% of the number of shares of Common Stock outstanding, on a non-diluted basis in connection with other acquisitions of real property or real property companies and (y) Common Stock upon request the information required by Rule 144A(d)(4) under the Act conversion or exchange of any securities issued pursuant to (i) any holder or beneficial owner of Notes in connection with any sale of such Notes and (iivi)(x) any prospective purchaser of such Notes from any such holder above or beneficial owner designated by the holder or beneficial owner. The Issuer will pay the expenses of printing and distributing such documents.
(o) To comply with all of its agreements set forth in the Registration Rights Agreement.
(p) To comply with all of its obligations set forth in the representations letter of the Issuer to DTC relating to the approval of the Notes by DTC for "book-entry" transfer and to use its best efforts to obtain approval of the Notes by DTC for "book-entry" transfer.
(q) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been prepared by the Issuer, a copy of any regularly prepared internal financial statements of the Issuer and the Guarantors for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) all other reports and other communications (financial or otherwise) that the Issuer mails or otherwise makes available to its security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(r) Not to distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandum.
(s) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940.
(t) In connection with the offering, until the Initial Purchasers shall have notified the Issuer of the completion of the resale of the Notes, not pursuant to, and not to permit any of its affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other Persons, bid for or purchase for any account in which it or any of its affiliates has a beneficial interest; and neither the Issuer nor any of its affiliates will make bids or purchases for the purpose of creating actual or apparent active trading in, or of raising the price of, the Notes.
(u) To use its reasonable best efforts to effect the inclusion of the Original Notes in Portal.
Appears in 1 contract
Samples: Underwriting Agreement (Easterly Government Properties, Inc.)
Agreements of the Issuer. The Issuer covenants and agrees with the ------------------------ Initial Purchasers as followshereby agrees:
(a) To furnish (i) advise the Initial Purchasers and those persons identified Purchaser promptly after obtaining knowledge (and, if requested by the Initial PurchasersPurchaser, without charge, with as many copies confirm such advice in writing) of (A) the issuance by any state securities commission of any stop order suspending the qualification or exemption from qualification of any of the Preliminary Offering Memorandum and Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any state securities commission or other regulatory authority, or (B) the happening of any event that makes any statement of a material fact made in the Offering Memorandum, and Circular untrue or that requires the making of any amendments additions to or supplements thereto, as the Initial Purchasers may reasonably request. The Issuer consents to the use of the Preliminary Offering Memorandum and changes in the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, by the Initial Purchasers in connection with Exempt Resales.
Circular (b) Not to amend or supplement the Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement (including any document to be incorporated by reference) at least two business days prior to the proposed use, and shall not have reasonably objected to such amendment or supplement.
(c) If, prior to the time that the Initial Purchasers have completed their distribution of the Original Notes, any event occurs as a result of which, in the judgment of the Issuer or in the judgment of counsel to the Initial Purchasers, the Offering Memorandum, as then amended or supplemented, would include an untrue statement of material fact or omit supplemented from time to state any material fact necessary time) in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, or it is necessary to amend or supplement the Offering Memorandum to comply with any applicable laws, the Issuer shall promptly notify the Initial Purchasers of such event and (subject to Section 4(b)ii) prepare an appropriate amendment or supplement to the Offering Memorandum that will correct such statement or omission or effect such compliance.
(d) To cooperate with the Initial Purchasers and counsel to the Initial Purchasers in connection with the qualification or registration of the Original Notes under the securities laws of such jurisdictions as the Initial Purchasers may reasonably request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, the Issuer shall not be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to file a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers promptly and, if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuer shall use its reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption from qualification of any of the Original Notes under any state securities or Blue Sky laws, and (iii) if at any time any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of any of the Original Notes under any securities such laws, the Issuer shall use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To (i) furnish the Purchaser, without charge, as many copies of the Offering Circular, and any amendments or supplements thereto, as the Purchaser may reasonably request and (ii) promptly prepare, upon the Purchaser's request, any amendment or supplement to the Offering Circular that the Purchaser xxxxx xxx be reasonably necessary in connection with Exempt Resales (and the Black Angus Entities hereby consent to the use of the Offering Circular, and any amendments and supplements thereto, by the Purchaser in connection with Exempt Resales).
(c) Not to amend or supplement the Offering Circular prior to the Closing Date unless the Issuer shall have advised the Purchaser reasonably in advance.
(d) So long as the Purchaser shall hold any Notes as part of an unsold allotment in the initial distribution, (i) if any event shall occur as a result of which, in the reasonable judgment of the Issuer or the Purchaser, it becomes necessary or advisable to amend or supplement the Offering Circular in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Offering Circular to comply with Applicable Law (defined below), forthwith to prepare an appropriate amendment or supplement to the Offering Circular so that (A) as so amended or supplemented the Offering Circular will not include an untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) the Offering Circular will comply with applicable law and (ii) if it becomes necessary or advisable to amend or supplement the Offering Circular so that the Offering Circular will contain all of the information specified in, and meet the requirements of, Rule 144(A)(d)(4) of the Act, forthwith to prepare an appropriate amendment or supplement to the Offering Circular so that the Offering Circular, as so amended or supplemented, will contain the information specified in, and meet the requirements of, such Rule.
(e) To cooperate with the Purchaser and the Purchaser's counsel in connection with the qualification of the Notes under the securities or Blue Sky laws of such jurisdictions as the Purchaser may reasonably request and continue such qualification in effect so long as reasonably required for Exempt Resales; provided, that no Black Angus Entity shall be required in connection therewith to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction where it is not now so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
(f) Whether or not any of the transactions contemplated by Transactions are consummated or this Agreement are consummatedis terminated, to pay (i) all reasonable costs, expenses, fees, disbursements (including fees, expenses fees and disbursements of counsel to the Issuer) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (iA) the preparation, printing and distribution of the Preliminary Offering Memorandum Circular, the Exchange Offer and the Offering Memorandum Consent Solicitation in each case including all amendments and supplements thereto (including, without limitation, financial statements) statements and exhibits), and all amendments preliminary and supplements thereto, (ii) all expenses (including travel expenses) of the Issuer and the Initial Purchasers in connection with any meetings with prospective investors in the Original Notes, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents final Blue Sky memoranda and all other agreements, memoranda, correspondence and other documents prepared and delivered in connection with this Agreement and with the Exempt Resalesherewith, (ivB) the issuanceprinting, transfer processing and distribution (including, without limitation, word processing and duplication costs) and delivery of, and performance under, each of the Documents, (C) the issuance and delivery of the Original Notes by Notes, including the Issuer to reasonable fees of the Initial PurchasersTrustee and the cost of its personnel, (vD) the qualification or registration of the Notes for offer and sale under the securities or Blue Sky laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and reasonable fees and disbursements of the Purchaser's counsel (including local counsel) relating to the Initial Purchasers relating theretosuch registration or qualification), (viE) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering MemorandumCircular, and all amendments and supplements thereto, as may reasonably be reasonably requested for use in connection with Exempt Resalesby the Purchaser, and (viiF) the preparation of certificates for the NotesNotes (including, without limitation, printing and engraving thereof), (viiiii) all fees and expenses of the counsel and accountants of the Black Angus Entities, (iii) all reasonable expenses and listing fees in connection with the application for quotation of the Notes in The Portal Market Private Offering Resales and Trading Through Automated Linkage ("PortalPORTAL"), (iv) all fees and expenses (including fees and expenses of counsel) of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ix) the Black Angus Entities in connection with approval of the Notes by The Depository Trust Company ("DTC") DTC for "book-entry" transfer, (xv) all fees charged by rating agencies in connection with the rating of the Notes by rating agencies, and (xivi) the all reasonable fees and expenses (including reasonable fees and expenses of the Trustee and its counsel and (xiicounsel) the performance incurred by the Purchaser in connection with the preparation, negotiation and execution of the Documents and the consummation of the Transactions unless the Issuer of its other obligations under terminates the Note DocumentsAgreement pursuant to Section 11 hereof.
(g) To use the proceeds from the sale of the Original Notes in the manner described in the Offering Memorandum 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, 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 Indenture (and, to the extent it may lawfully do so, each Black Angus Entity hereby expressly waives all benefit or advantage of any such law, and covenants that it shall not, by resort to any such law, hinder, delay or impede the execution of any power granted to the Trustee in the Indenture or the Collateral Agent in the Security Documents but shall suffer and permit the execution of every such power as though no such law had been enacted).
(i) To do and perform all things required to be done and performed under this Agreement by it under the Documents that are within its control prior to or and after the Closing Date Date. Without limiting the foregoing, the Issuer will do and perform all things necessary or advisable to satisfy obtain all conditions precedent on its part termination statements, mortgage releases and other collateral lease and termination lease documents necessary to terminate the delivery of Liens contemplated by Section 6(n)(iv) hereof as promptly as practicable following the Original NotesClosing Date.
(ij) Not to, and not to permit ensure that no affiliate (as defined in Rule 501(b) of the Act) of any of its subsidiaries (i) tothem will, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security "security" (as defined in the Act) that would be integrated with the sale of the Original Notes in a manner that would require the registration under the Act of the sale to the Purchaser or to the Eligible Purchasers of the Original Notes to the Initial Purchasers or any Eligible Purchasers, or (ii) for a period of 90 days after the Closing Date, without the prior written consent of UBS Warburg, to sell, offer for sale or solicit offers to buy any debt securities with a term of one year or longer; provided that, an assumption of debt previously outstanding at an acquired company (and not issued in contemplation of such acquisition) and otherwise permitted under the terms of the Indenture, will not be deemed to violate clause (ii) hereof.
(j) Not to, and to use its reasonable best efforts to cause its affiliates (as defined in Rule 144 under the Act) not to, resell any of the Original Notes that have been reacquired by any of themNotes.
(k) Not to engage, not to allow any of its subsidiaries to engage, and to use its reasonable best efforts to cause its other affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Issuer makes no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Notes.
(l) Not to engage, not to allow any of its subsidiaries to engage, and to use its reasonable best efforts to cause its other affiliates and any person acting on its behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Issuer makes no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) During the period of three years after the Closing Date, to furnish to the Initial Purchasers copies of such financial statements and other periodic and special reports as the Issuer may from time to time distribute generally to holders of any class of its capital stock or file with the Commission, Nasdaq or any national securities exchange, and to furnish to each Initial Purchaser who so requests a copy of each annual or other report it is required to file therewith.
(n) From and after the Closing Date, for For so long as any of the Notes remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Act and outstanding, during any period in which the Issuer any of them is not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to make available available, upon request request, to any owner of the Notes in connection with any sale thereof and any prospective Eligible Purchaser of such Notes from such owner, the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes in connection with any sale of such Notes and (ii) any prospective purchaser of such Notes from any such holder or beneficial owner designated by the holder or beneficial owner. The Issuer will pay the expenses of printing and distributing such documentsAct.
(ol) To comply with all of its agreements set forth in the Registration Rights Agreement.
(p) To comply with all of its obligations set forth in the representations representation letter of the Issuer to DTC relating to the approval of the Notes by DTC for "book-entry" transfer and to use its best efforts to obtain approval of the Notes by DTC for "book-book entry" transfer.
(q) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been prepared by the Issuer, a copy of any regularly prepared internal financial statements of the Issuer and the Guarantors for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) all other reports and other communications (financial or otherwise) that the Issuer mails or otherwise makes available to its security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(r) Not to distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandum.
(s) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940.
(t) In connection with the offering, until the Initial Purchasers shall have notified the Issuer of the completion of the resale of the Notes, not to, and not to permit any of its affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other Persons, bid for or purchase for any account in which it or any of its affiliates has a beneficial interest; and neither the Issuer nor any of its affiliates will make bids or purchases for the purpose of creating actual or apparent active trading in, or of raising the price of, the Notes.
(um) To use its reasonable best efforts to effect the inclusion of the Original Notes in PortalPORTAL.
(n) For so long as the Notes are outstanding, and whether or not required to do so by the rules and regulations of the Commission, to furnish to the Trustee and deliver or cause to be delivered to the holders of the Notes and the Purchaser all quarterly and annual financial information and all reports specified in Section 4.3 of the Indenture.
(o) Except in connection with the Registered Exchange Offer or the filing of the Shelf Registration Statement, not to, and not to authorize or knowingly permit any person acting on its behalf to, (i) distribute any offering material in connection with the offering and sale of the Notes other than the Offering Circular and any amendments and supplements to the Offering Circular prepared in compliance with Section 5(c) hereof or (ii) solicit any offer to buy or offer to sell the Notes by means of any form of general solicitation or general advertising (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.
(p) Not to, directly or indirectly, without the prior consent of the Purchaser, offer, sell, grant any option to purchase, or otherwise dispose (or announce any offer, sale, grant of any option to purchase or other disposition) of any securities of any Black Angus Entity for a period of 90 days after the date hereof, except (i) as contemplated by the Registration Rights Agreement or the Offering Circular or (ii) options to purchase common stock granted to employees of the Issuer.
(q) For so long as the Purchaser shall hold any Notes, to notify the Purchaser promptly in writing if the Issuer or any of its Affiliates becomes a party in interest or a disqualified person with respect to any employee benefit plan other than any such plans described in Annex B to the Final Offering Circular. The terms "ERISA," "Affiliates," "party in interest," "disqualified person" and "employee benefit plan" shall have the meanings as set forth in Section 6(w) hereof.
Appears in 1 contract
Agreements of the Issuer. The Issuer covenants and agrees with each of the ------------------------ Initial Purchasers Underwriters as follows:
(a) To furnish The Issuer will prepare a supplement to the Initial Purchasers Prospectus setting forth the amount of the Series 2007-1 LIBOR Notes covered thereby and those persons identified the terms thereof not otherwise specified in the Prospectus, the price at which the Series 2007-1 LIBOR Notes are to be purchased by the Initial PurchasersUnderwriters, without chargeeither the initial public offering price or the method by which the price at which the Series 2007-1 LIBOR Notes are to be sold will be determined, the selling concessions and reallowances, if any, and such other information as the Underwriters and the Issuer deem appropriate in connection with as many copies the offering of the Preliminary Offering Memorandum Series 2007-1 LIBOR Notes, and the Offering MemorandumIssuer will timely file such supplement to the prospectus with the SEC pursuant to Rule 424(b) under the Securities Act, and but the Issuer will not file any amendments to the Registration Statement as in effect with respect to the Series 2007-1 LIBOR Notes or any amendments or supplements theretoto the Prospectus, or any "free writing prospectus" to the extent required by Rule 433(d) under the Securities Act, unless it shall first have delivered copies of such amendments or supplements or "free writing prospectus" to the Underwriters, with reasonable opportunity to comment on such proposed amendment or supplement, or if the Underwriters or their counsel shall have reasonably objected thereto promptly after receipt thereof; the Issuer will immediately advise the Underwriters or the Underwriters' counsel (i) when notice is received from the SEC that any post effective amendment to the Registration Statement has become or will become effective; and (ii) of any order or communication suspending or preventing, or threatening to suspend or prevent, the offer and sale of the Series 2007-1 LIBOR Notes or of any proceedings or examinations that may lead to such an order or communication, whether by or of the SEC or any authority administering any state securities or Blue Sky law, as soon as the Initial Purchasers may reasonably requestIssuer is advised thereof, and will use its best efforts to prevent the issuance of any such order or communication and to obtain as soon as possible its lifting, if issued. The Issuer consents will comply with the requirements of Rule 433 under the Securities Act applicable to any "issuer free writing prospectus," including timely filing with the use of the Preliminary Offering Memorandum Commission, retention where required and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, by the Initial Purchasers in connection with Exempt Resaleslegending.
(b) Not to amend If at any time following the issuance of an "issuer free writing prospectus" or supplement when the Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement (including any document Prospectus is required to be incorporated by reference) at least two business days prior to delivered under the proposed use, and shall not have reasonably objected to such amendment or supplement.
(c) If, prior to the time that the Initial Purchasers have completed their distribution of the Original NotesSecurities Act, any event occurred or occurs as a result of which, which such "issuer free writing prospectus" would conflict with the information in the judgment of Registration Statement or Prospectus, or the Issuer or in the judgment of counsel to the Initial Purchasers, the Offering Memorandum, Prospectus as then amended or supplemented, supplemented would include an untrue statement of a material fact or omit to state any 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 are madethen prevailing, not misleading, or if it is necessary at any time to amend or supplement the Offering Memorandum Prospectus to comply with any applicable lawsthe Securities Act or the Rules and Regulations, the Issuer shall promptly will notify each of the Initial Purchasers Underwriters of such event and (subject to Section 4(b)) will promptly prepare and file with the SEC, at its own expense, an appropriate "issuer free writing prospectus" or amendment or supplement to the Offering Memorandum such Prospectus or other document that will correct such statement or omission or an amendment that will effect such compliance. Neither the Underwriters' consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 6 hereof.
(c) The Issuer will immediately inform the Underwriters (i) of the receipt by the Issuer of any communication from the SEC or any state securities authority concerning the offering or sale of the Series 2007-1 Notes; and (ii) of any threatened lawsuit or proceeding or of the commencement of any lawsuit or proceeding to which the Issuer is a party relating to the offering or sale of the Series 2007-1 Notes.
(d) To The Issuer will furnish to the Underwriters, without charge, copies of the Registration Statement (including all documents and exhibits thereto or incorporated by reference therein), the Disclosure Package, the Prospectus, and all amendments and supplements to such documents relating to the Series 2007-1 Notes, in each case in such quantities as the Underwriters may reasonably request.
(e) No amendment or supplement will be made to the Registration Statement, the Disclosure Package or the Prospectus which the Underwriters shall not previously have been advised or to which it shall reasonably object after being so advised.
(f) The Issuer will cooperate with the Initial Purchasers Underwriters and with their counsel to the Initial Purchasers in connection with the qualification of, or registration procurement of exemptions with respect to, the Original Series 2007-1 LIBOR Notes for offering and sale by the Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers Underwriters may reasonably request designate and will file such consents to continue service of process or other documents necessary or appropriate in order to effect such qualification or exemptions; provided that in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, no event shall the Issuer shall not be required obligated to qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to file a general consent take any action which would subject it to service of process in any such jurisdiction suits, other than those arising out of the offering or subject itself to taxation in excess sale of a nominal dollar amount the Series 2007-1 LIBOR Notes, in any such jurisdiction where it is not then now so subject.
(eg) To advise The Issuer consents to the Initial Purchasers promptly anduse, if requested in accordance with the securities or Blue Sky laws of such jurisdictions in which the Series 2007-1 LIBOR Notes are offered by the Initial Purchasers, to confirm such advice in writingUnderwriters and by dealers, of the issuance Disclosure Package and the Prospectus furnished by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuer shall use its reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any of the Original Notes under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes under any securities laws, the Issuer shall use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(f) Whether or not the transactions contemplated by this Agreement are consummated, to pay all costs, expenses, fees, disbursements (including fees, expenses and disbursements of counsel to the Issuer) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum (including, without limitation, financial statements) and all amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuer and the Initial Purchasers in connection with any meetings with prospective investors in the Original Notes, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery of the Original Notes by the Issuer to the Initial Purchasers, (v) the qualification or registration of the Notes for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (vi) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vii) the preparation of certificates for the Notes, (viii) the application for quotation of the Notes in The Portal Market ("Portal") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes by rating agencies, (xi) the fees and expenses of the Trustee and its counsel and (xii) the performance by the Issuer of its other obligations under the Note Documents.
(g) To use the proceeds from the sale of the Original Notes in the manner described in the Offering Memorandum under the caption "Use of Proceeds."
(h) To do and perform all things required the extent, if any, that the rating or ratings provided with respect to the Series 2007-1 LIBOR Notes by the rating agency or agencies that initially rate the Series 2007-1 LIBOR Notes is conditional upon the furnishing of documents or the taking of any other actions by the Issuer, the Issuer shall cause to be done furnished such documents and performed under this Agreement by it prior such other actions to or after the Closing Date and to satisfy all conditions precedent on its part to the delivery of the Original Notesbe taken.
(i) Not to, and not to permit any of its subsidiaries (i) to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers or any Eligible Purchasers, or (ii) for a period of 90 days after the Closing Date, without the prior written consent of UBS Warburg, to sell, offer for sale or solicit offers to buy any debt securities with a term of one year or longer; provided that, an assumption of debt previously outstanding at an acquired company (and not issued in contemplation of such acquisition) and otherwise permitted under the terms of the Indenture, will not be deemed to violate clause (ii) hereof.
(j) Not to, and to use its reasonable best efforts to cause its affiliates (as defined in Rule 144 under the Act) not to, resell any of the Original Notes that have been reacquired by any of them.
(k) Not to engage, not to allow any of its subsidiaries to engage, and to use its reasonable best efforts to cause its other affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Issuer makes no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Notes.
(l) Not to engage, not to allow any of its subsidiaries to engage, and to use its reasonable best efforts to cause its other affiliates and any person acting on its behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Issuer makes no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) During the period of three years after the Closing Date, to furnish to the Initial Purchasers copies of such financial statements and other periodic and special reports as the Issuer may from time to time distribute generally to holders of any class of its capital stock or file with the Commission, Nasdaq or any national securities exchange, and to furnish to each Initial Purchaser who so requests a copy of each annual or other report it is required to file therewith.
(n) From and after the Closing Date, for so So long as any of the Series 2007-1 LIBOR Notes remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Act and during any period in which outstanding, the Issuer is not subject will furnish to Section 13 or 15(dthe Underwriters (i) as soon as available, a copy of each document relating to the Series 2007-1 Notes required to be filed with the SEC pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to make available upon request or any order of the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes in connection with any sale of such Notes SEC thereunder; and (ii) such other information concerning the Issuer as the Underwriters may request from time to time.
(j) If this Agreement shall terminate or shall be terminated after execution and delivery pursuant to any prospective purchaser of such Notes from any such holder or beneficial owner designated provisions hereof (otherwise than by notice given by the holder Underwriters terminating this Agreement pursuant to Section 9 or beneficial owner. The 10 hereof) or if this Agreement shall be terminated by the Underwriters because of any failure or refusal on the part of the Issuer will pay to comply with the terms or fulfill any of the conditions of this Agreement, the Issuer agrees to reimburse the Underwriters for all out of pocket expenses (including fees and expenses of printing their counsel) reasonably incurred by it in connection herewith, but without any further obligation on the part of the Issuer for loss of profits or otherwise.
(k) The net proceeds from the sale of the Series 2007-1 Notes hereunder will be applied substantially in accordance with the description set forth in the Disclosure Package and distributing such documentsthe Prospectus.
(l) Except as stated in this Agreement, the Disclosure Package and the Prospectus, the Issuer has not taken, nor will it take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Series 2007-1 LIBOR Notes to facilitate the sale or resale of the Series 2007-1 LIBOR Notes.
(m) On or before each date that Financed Student Loans are pledged under the Indenture, the Issuer shall mark its accounting and other records, if any, relating to the Financed Student Loans and shall cause the Master Servicer and each Subservicer to mark their respective computer records relating to the Financed Student Loans to show the absolute ownership by the Eligible Lender Trustee, as eligible lender of, and the interest of the Issuer in, the Financed Student Loans, and the Issuer shall not take, nor shall permit any other person to take, any action inconsistent with the ownership of, and the interest of the Issuer in, the Financed Student Loans, other than as permitted by the Basic Documents.
(n) For the period beginning on the date of this Agreement and ending 90 days hereafter, neither the Issuer nor any entity affiliated, directly or indirectly, with the Issuer will, without prior written notice to the Underwriters, offer to sell or sell notes (other than the Series 2007-1 Notes) collateralized by the Financed Student Loans.
(o) To comply with all of its agreements set forth in If, at the time the Registration Rights Statement became effective, any information shall have been omitted therefrom in reliance upon Rule 430A under the Securities Act, then, immediately following the execution of this Agreement, the Issuer will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b) under the Securities Act, copies of an amended Prospectus containing all information so omitted.
(p) To comply with all As soon as practicable, but not later than 16 months after the date of this Agreement, the Issuer will make generally available to its obligations set forth in securityholders an earnings statement covering a period of at least 12 months beginning after the representations letter later of (i) the effective date of the Issuer to DTC relating Registration Statement; (ii) the effective date of the most recent post effective amendment to the approval Registration Statement to become effective prior to the date of this Agreement; and (iii) the date of the Notes by DTC for "bookIssuer's most recent Annual Report or Form 10-entry" transfer and K filed with the Commission prior to use its best efforts to obtain approval the date of this Agreement, which will satisfy the provisions of Section 11(a) of the Notes by DTC for "book-entry" transferSecurities Act.
(q) Prior The Issuer, the Depositor and College Loan acknowledge and agree that the Underwriters are acting solely in the capacity of an arm's length contractual counterparty to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been prepared by the Issuer, a copy of any regularly prepared internal financial statements the Depositor and College Loan with respect to the offering of the Issuer and the Guarantors for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, Series 2007-1 LIBOR Notes contemplated hereby (ii) all other reports and other communications (financial or otherwise) that the Issuer mails or otherwise makes available to its security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(r) Not to distribute prior to the Closing Date any offering material including in connection with determining the offer and sale terms of the Original Notes other than the Preliminary Offering Memorandum offering) and the Offering Memorandum.
(s) During the period of two years after the Closing Date or, if earlier, until such time not as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be a financial advisor or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940.
(t) In connection with the offering, until the Initial Purchasers shall have notified the Issuer of the completion of the resale of the Notes, not fiduciary to, and not to permit any of its affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other Persons, bid for or purchase for any account in which it or any of its affiliates has a beneficial interest; and neither the Issuer nor any of its affiliates will make bids or purchases for the purpose of creating actual or apparent active trading in, or of raising the price an agent of, the Notes.
(u) To use its reasonable best efforts to effect Issuer, the inclusion Depositor, College Loan or any other person. Additionally, none of the Original Notes Underwriters are advising the Issuer, the Depositor, College Loan or any other person as to any legal, tax, investment, accounting or regulatory matters in Portalany jurisdiction with respect to the transactions contemplated herein. The Issuer, the Depositor and College Loan shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Issuer, the Depositor or College Loan with respect thereto. Any review by the Underwriters of the Issuer, the Depositor or College Loan, the transaction contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Issuer, the Depositor or College Loan.
Appears in 1 contract
Samples: Underwriting Agreement (College Loan Corp Trust II)
Agreements of the Issuer. The Issuer Company covenants and agrees with the ------------------------ Initial Purchasers as follows:
(a) To furnish the Initial Purchasers Purchaser and those persons identified by the Initial PurchasersPurchaser, without charge, with as many copies of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably requestrequest for purposes contemplated by the Act. The Issuer Company consents to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, by the Initial Purchasers in connection with Exempt ResalesResales that are in compliance with Section 4(B) of this Agreement.
(b) Not to amend or supplement the Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement (including any document to be incorporated by reference) at least two business days prior to the proposed useof, and shall not have reasonably objected to (any such objection not to be unreasonable), such amendment or supplement within a reasonable time, but in any event not longer than five days after being furnished with a copy of such amendment or supplement. The Company shall promptly prepare, upon the Initial Purchasers' reasonable request, any amendment or supplement to the Offering Memorandum that may be necessary or advisable in connection with Exempt Resales.
(c) If, during the time that an Offering Memorandum is required to be delivered in connection with any Exempt Resales or market-making transactions after the date of this Agreement and prior to the time that the Initial Purchasers have completed their distribution consummation of the Original NotesExchange Offer, any event occurs as a result of whichshall occur that, in the judgment of the Issuer Company or in the judgment of counsel to the Initial Purchasers, makes any statement of a material fact in the Offering Memorandum, as then amended Memorandum untrue or supplemented, would include an untrue statement that requires the making of material fact any additions to or omit to state any material fact necessary changes in the Offering Memorandum in order to make the statements thereinin the Offering Memorandum, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with any all applicable laws, the Issuer Company shall promptly notify the Initial Purchasers of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Offering Memorandum so that (i) the statements in the Offering Memorandum as amended or supplemented will, in the light of the circumstances at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not be misleading and (ii) the Offering Memorandum will correct such statement or omission or effect such compliancecomply with applicable law.
(d) To furnish such information as may be required and otherwise to cooperate with the Initial Purchasers and counsel to the Initial Purchasers in connection with qualifying the qualification or registration of the Original Notes and Exchange Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may reasonably request and to continue maintain such qualification in effect so long as required for the Exempt Resales. Notwithstanding ; provided that the foregoing, the Issuer Company shall not be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to file a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
subject (e) To except service of process with respect to the offering and sale of the Notes and Exchange Notes); and to promptly advise the Initial Purchasers promptly and, if requested of the receipt by the Initial Purchasers, Company of any notification with respect to confirm such advice in writing, the suspension of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes or Exchange Notes for offering or sale in any jurisdiction, jurisdiction or the initiation or threatening of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuer shall use its reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any of the Original Notes under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes under any securities laws, the Issuer shall use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible timepurpose.
(fe) Whether or not the transactions contemplated by this Agreement are consummatedconsummated or this Agreement becomes effective or is terminated, to pay all costs, expenses, fees, fees and disbursements of the Company (including fees, expenses and disbursements of counsel to the Issuercounsel) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing printing, filing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum (including, without limitation, financial statements) and all amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuer and the Initial Purchasers in connection with any meetings with prospective investors in the Original Notes, (iii) the preparation, notarization (if necessary) preparation and delivery of the Note Operative Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iviii) the issuance, transfer and delivery by the Company of the Original Notes by the Issuer to the Initial Purchasers, (viv) the qualification or registration of the Notes for offer and sale under the securities or Blue Sky laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing a preliminary and final Blue Sky or legal investment memoranda memorandum and the fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (viv) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (viivi) the preparation of certificates for the NotesNotes and Exchange Notes (including, without limitation, printing and engraving thereof), (viiivii) the application for quotation eligibility of the Notes for trading in The Portal Market the Private Offerings, Resales and Trading through Automated Linkages ("PortalPORTAL") market of the National ------ Association of Securities Dealers, Inc. ("NASD"), including, but not ---- limited to, all listing application fees and expenses, (ixviii) the approval of the Notes and Exchange Notes by The Depository Trust Company ("DTC") for "book-book- --- entry" transfer, (xix) the rating of the Notes and Exchange Notes by rating agencies, (xix) the fees and expenses of the Trustee and its counsel and (xiixi) the performance by the Issuer Company of its other obligations under the Note Operative Documents, including, but not limited to, the fees, disbursements and expenses of the Company's counsel and accountants.
(gf) To use the proceeds from the sale of the Original Notes in the manner described in the Offering Memorandum under the caption "Use of Proceeds."
(hg) To do and perform all things required to be done and performed under this Agreement by it prior to or after the Closing Date and to use commercially reasonable efforts to satisfy all conditions precedent on its part to the delivery of the Original Notes.
(ih) Not to, and not to permit any of its subsidiaries (i) to, 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 Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers or any Eligible Purchasers, or (ii) for a period of 90 days after the Closing Date, without the prior written consent of UBS Warburg, to sell, offer for sale or solicit offers to buy any debt securities with a term of one year or longer; provided that, an assumption of debt previously outstanding at an acquired company (and not issued in contemplation of such acquisition) and otherwise permitted under the terms of the Indenture, will not be deemed to violate clause (ii) hereof.
(j) Not to, and to use its reasonable best efforts to cause its affiliates (as defined in Rule 144 under the Act) not to, resell any of the Original Notes that have been reacquired by any of them.
(k) Not to engage, not to allow any of its subsidiaries to engage, and to use its reasonable best efforts to cause its other affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Issuer makes no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Notes.
(l) Not to engage, not to allow any of its subsidiaries to engage, and to use its reasonable best efforts to cause its other affiliates and any person acting on its behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Issuer makes no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) During the period of three years after the Closing Date, to furnish to the Initial Purchasers copies of such financial statements and other periodic and special reports as the Issuer may from time to time distribute generally to holders of any class of its capital stock or file with the Commission, Nasdaq or any national securities exchange, and to furnish to each Initial Purchaser who so requests a copy of each annual or other report it is required to file therewith.
(ni) From and after the Closing Date, for so long as any of the Notes remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Act and during which period, or any period in which part thereof, the Issuer Company is 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 ------------ the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes in connection with any sale of such Notes and (ii) any prospective purchaser of such Notes from any such holder or beneficial owner designated by the holder or beneficial owner. The Issuer will pay the expenses of printing and distributing such documents.
(oj) To comply with all of its agreements set forth in the Registration Rights Agreement.
(p) To comply with Agreement and all of its obligations agreements set forth in the representations letter of the Issuer Company to DTC relating to the approval of the Notes by DTC for "book-entry" transfer and to transfer.
(k) To use its best efforts to effect the eligibility of the Notes for trading in the PORTAL market and to obtain approval of the Notes by DTC for "book-entry" transfer.
(ql) From and after the Closing Date, for so long as any of the Notes remain outstanding, to deliver without charge to the Initial Purchasers, promptly upon their becoming available, copies of (i) all reports and other communications (financial or otherwise) that the Company shall mail or otherwise make available to its security holders, (ii) all reports or financial statements furnished to or filed by the Company with the Commission or any national securities exchange and (iii) such other publicly available information as the Initial Purchasers may reasonably request regarding the Company and its subsidiaries.
(m) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been prepared by the IssuerCompany, a copy of any regularly prepared internal financial statements of the Issuer and the Guarantors Company for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) all other reports Memorandum and other communications (financial or otherwise) that prior to the Issuer mails or otherwise makes available to its security holders and (iii) such other information as the Initial Purchasers shall reasonably requestClosing Date.
(rn) Not to distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandum.
(s) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940.
(t) In connection with the offering, until the Initial Purchasers shall have notified the Issuer of the completion of the resale of the Notes, not to, and not to permit any of its affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other Persons, bid for or purchase for any account in which it or any of its affiliates has a beneficial interest; and neither the Issuer nor any of its affiliates will make bids or purchases for the purpose of creating actual or apparent active trading in, or of raising the price of, the Notes.
(u) To use its reasonable best efforts to effect the inclusion of the Original Notes in Portal.
Appears in 1 contract
Agreements of the Issuer. The Issuer covenants and agrees with the ------------------------ Initial Purchasers as follows:
(a) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers, without charge, with as many copies of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request. The Issuer consents to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreementthereto, by the Initial Purchasers in connection with Exempt Resales.
(b) Not to make any changes or additions to the information contained in the Offering Memorandum from the corresponding information contained in the most recent draft Offering Memorandum (the "DRAFT OM") provided to the Representative prior to the execution of this Agreement other than (i) changes and additions to reflect pricing information with respect to the Original Notes and (ii) such other changes and additions as to which the Representative shall have consented (such consent not to be unreasonably withheld or delayed). Not to amend or supplement the Offering Memorandum prior to the Closing Date unless the Initial Purchasers (i) shall previously have been advised of such proposed amendment or supplement (including any document to be incorporated by reference) at least two business days prior to the proposed use, use (or such shorter period as may be required to comply with applicable legal and contractual obligations) and (ii) shall not have reasonably objected to, or shall have consented to (such consent not to be unreasonably withheld or delayed), such amendment or supplement.
(c) If, prior to the time that the Initial Purchasers have completed their distribution of the Original Notes, any event occurs shall occur and, as a result of whichthereof, in the judgment of the Issuer or in the judgment of counsel to the Initial Purchasers, the Offering Memorandum, as then amended or supplemented, would include an any untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements thereinin the Offering Memorandum, as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with any all applicable laws, the Issuer shall promptly notify the Initial Purchasers of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Offering Memorandum so that (i) the statements in the Offering Memorandum, as amended or supplemented, will correct such not contain any untrue statement of a material fact or omission or effect such complianceomit to state any material fact necessary in order to make the statements therein, in the light of the circumstances at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not misleading and (ii) the Offering Memorandum will comply with applicable law.
(d) To cooperate with the Initial Purchasers and counsel to the Initial Purchasers in connection with the qualification qualify or registration of register the Original Notes under the securities laws of such jurisdictions as the Initial Purchasers may reasonably request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, the Issuer shall not be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to file execute a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers promptly and, if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuer shall use its reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any of the Original Notes under any securities laws, and and, if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes under any securities laws, the Issuer shall use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(f) Whether or not the transactions contemplated by this Agreement are consummated, to pay all costs, expenses, fees, fees and disbursements (including fees, expenses fees and disbursements of counsel to and accountants for the Issuer) reasonably incurred in connection with the performance of the obligations of the Issuer under this Agreement and all stamp, documentary or similar taxes incident to and in connection withtherewith, including, those relating to: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum (including, without limitation, financial statements) and all any amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuer and the Initial Purchasers in connection with any meetings with prospective investors in the Original NotesNotes (including, if applicable, rental costs of airplanes used to transport representatives of the Issuer, the Company and the Initial Purchasers to such meetings), (iii) the preparationpreparation (except to the extent prepared by counsel to the Initial Purchasers), notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery of the Original Notes by the Issuer to the Initial Purchasers, (v) the qualification or registration of the Original Notes for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and reasonable fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (vi) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vii) the preparation of certificates for the Notes, (viii) the application for quotation of the Original Notes in The Portal PORTALSM Market ("PortalPORTAL") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ixvii) the approval inclusion of the Original Notes by in the book-entry system of The Depository Trust Company ("DTC") for "book-entry" transfer), (xviii) the rating of the Original Notes by rating agencies, (xiix) the fees and expenses of the Trustee and its counsel and (xiix) the performance by the Issuer of its other obligations under the Note Documents. Except as specifically provided in this Section 4(f), the Initial Purchasers shall pay all of their own expenses (including all of the fees and disbursements of counsel) in connection with the preparation of this Agreement and the other Note Documents, the transactions contemplated hereby and thereby and all Exempt Resales.
(g) To use the net proceeds from the sale of the Original Notes in the manner described in the Offering Memorandum under the caption "Use of Proceedsproceeds."
(h) To do and perform all things required to be done and performed under this Agreement by it prior to or after the Closing Date and to satisfy all conditions precedent on its part to the delivery of the Original Notes.
(i) Not to, and not to permit any of its the Issuer's subsidiaries listed on Schedule II attached hereto (ieach, a "SUBSIDIARY" and collectively, the "SUBSIDIARIES") to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers or any Eligible Purchasers, or .
(iii) for a During the period of 90 days after two years immediately following the Closing Date, without the prior written consent of UBS Warburg, to sell, offer for sale or solicit offers to buy any debt securities with a term of one year or longer; provided that, an assumption of debt previously outstanding at an acquired company (and not issued in contemplation of such acquisition) and otherwise permitted under the terms of the Indenture, will not be deemed to violate clause (ii) hereof.
(j) Not to, and to use its reasonable best efforts to cause its affiliates their respective controlled "affiliates" (as defined in Rule 144 under the Act) not to, resell any of the Original Notes that constitute "restricted securities" under Rule 144 that have been reacquired by any of themthem (other than in a transaction registered under the Act).
(kj) Not to engage, not to allow any of its subsidiaries to engage, and to use its reasonable best efforts to cause its the Subsidiaries and their other respective controlled affiliates and or any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their controlled affiliates, as to whom the Issuer makes no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the NotesStates.
(lk) Not to engage, not to allow any of its subsidiaries to engage, and to use its reasonable best efforts to cause its the Subsidiaries and their other respective controlled affiliates and or any person acting on its their behalf (other than, in any case, the Initial Purchasers and any of their controlled affiliates, as to whom the Issuer makes no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. S. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) During the period of three years after the Closing Date, to furnish to the Initial Purchasers copies of such financial statements and other periodic and special reports as the Issuer may from time to time distribute generally to holders of any class of its capital stock or file with the Commission, Nasdaq or any national securities exchange, and to furnish to each Initial Purchaser who so requests a copy of each annual or other report it is required to file therewith.
(nl) From and after the Closing Date, for so long as any of the Original Notes remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Act and during any period in which the Issuer is 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 the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Original Notes in connection with any sale of such Original Notes and (ii) any prospective purchaser of such Original Notes from any such holder or beneficial owner designated by the holder or beneficial owner. The Issuer will pay the reasonable expenses of preparing, printing and distributing such documents.
(om) To comply with all of its agreements set forth in obligations under the Registration Rights Agreement.
(pn) To comply with all of its obligations set forth in under the representations letter of the Issuer representations to DTC relating to the approval of the Original Notes by DTC for "book-entry" transfer and to use its their reasonable best efforts to obtain approval of the Original Notes by DTC for "book-entry" transfer.
(qo) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been prepared by the IssuerCompany, a copy of any regularly prepared internal financial statements of the Issuer Company and the Guarantors Subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) as soon as they have been furnished to the Issuer, all other reports and other communications (financial or otherwise) that the Issuer or any of the Subsidiaries mails or otherwise makes available to its security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(rp) Not to, and to cause any of their respective controlled affiliates or anyone acting on their or such person's behalf (other than the Initial Purchasers and their affiliates, as to whom the Issuer makes no covenant) not to, distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes other than the Preliminary Offering Memorandum (it being understood that certain potential purchasers of the Original Notes from the Initial Purchasers may be provided with a summary term sheet and "description of notes" prior to the distribution of the Offering Memorandum).
(sq) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940.
(tr) In connection with the offering, until the Initial Purchasers shall have notified the Issuer of the completion of the resale distribution of the Original Notes, not to, and not to permit cause any of its affiliates controlled "affiliates" (as such term is defined in Rule 501(b) of Regulation D under the Act) not to, either alone or with one or more other Personspersons, bid for or purchase for any account in which it or any of its affiliates has a beneficial interest; and neither the Issuer nor any of its affiliates will make bids or purchases , for the purpose of creating actual or apparent active trading in, or of raising the price of, the Original Notes.
(us) To use its reasonable best efforts to effect the inclusion of the Original Notes in Portal.
(t) During the period from the date hereof through and including the date that is 90 days after the date hereof, without the prior written consent of the Representative, offer, sell, contract to sell or otherwise dispose of any debt securities issued or guaranteed by the Issuer or any Subsidiary and having a tenor of more than one year, other than debt instruments issued to sellers of property, capital lease obligations, credit facilities used for working capital or to finance acquisitions and in connection with the Company's exchange offer for its 8 1/2% senior subordinated notes.
Appears in 1 contract
Agreements of the Issuer. The Issuer covenants and agrees with the ------------------------ Initial Purchasers as follows:
(a) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers, without charge, with as many copies of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request. The Issuer consents to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, by the Initial Purchasers in connection with Exempt Resales.
(b) Not to amend or supplement the Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement (including any document to be incorporated by reference) at least two business days prior to the proposed use, and shall not have reasonably objected to such amendment or supplement.
(c) If, prior to the time that the Initial Purchasers have completed their distribution of the Original Notes, any event occurs as a result of whichshall occur that, in the judgment of the Issuer or in the judgment of counsel to the Initial Purchasers, makes any statement of a material fact in the Offering Memorandum, as then amended or supplemented, would include an untrue statement or that requires the making of material fact any additions to or omit to state any material fact necessary changes in the Offering Memorandum in order to make the statements thereinin the Offering Memorandum, as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement supple- ment the Offering Memorandum to comply with any all applicable laws, the Issuer shall promptly notify the Initial Purchasers of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Offering Memorandum so that (i) the statements in the Offering Memorandum, as amended or supplemented, will, in the light of the circumstances at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not be misleading and (ii) the Offering Memorandum will correct such statement or omission or effect such compliancecomply with applicable law.
(d) To cooperate with the Initial Purchasers and counsel to the Initial Purchasers in connection with the qualification or registration of the Original Notes under the securities laws of such jurisdictions as the Initial Purchasers may reasonably request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, the Issuer shall not be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to file a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers promptly and, if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuer shall use its reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any of the Original Notes under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes under any securities laws, the Issuer shall use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(f) Whether or not the transactions contemplated by this Agreement are consummated, to pay all costs, expenses, fees, disbursements (including fees, expenses and disbursements of counsel to the Issuer) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum (including, without limitation, financial statements) and all amendments and supplements thereto, (ii) all expenses (including travel expenses) incurred by the Issuer's employees and 100% of the Issuer and the Initial Purchasers costs of chartered aircraft, if any, in connection with any meetings with prospective investors in the Original Notes, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) fees and disbursements of counsel of the Issuer, (v) the issuance, transfer and delivery of the Original Notes by the Issuer to the Initial Purchasers, (vincluding any stamp taxes in connection with the initial issuance of the Original Notes,(vi) the qualification or registration of the Notes for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and reasonable fees and disbursements of counsel (including local counsel) to the Initial Purchasers directly relating thereto), (vivii) the furnishing of such copies of the Preliminary Offering Offer- ing Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (viiviii) the preparation of certificates for the Notes, (viiiix) the application for quotation of the Notes in The Portal Market ("PortalPORTAL") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ixx) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (xxi) the rating of the Notes by rating agencies, (xixii) the fees and expenses of the Trustee and its counsel counsel, (xiii) all costs and expenses with respect to compliance with the provisions of Section 8(n) hereof, including, without limitation, all recording and filing fees and stamp, documentary or similar taxes, and (xiixiv) the performance by the Issuer of its other obligations under the Note Transaction Documents.
(g) To use the proceeds from the sale of the Original Notes in the manner described in the Offering Memorandum under the caption "Use of Proceeds."
(h) To do and perform all things required to be done and performed under this Agreement by it prior to or after the Closing Date and to satisfy all conditions precedent on its part to the delivery of the Original Notes.
(i) Not to, and not to permit any of its subsidiaries (i) to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers or any Eligible Purchasers, or (ii) for a period of 90 days after the Closing Date, without the prior written consent of UBS Warburg, to sell, offer for sale or solicit offers to buy any debt securities with a term of one year or longer; provided that, an assumption of debt previously outstanding at an acquired company (and not issued in contemplation of such acquisition) and otherwise permitted under the terms of the Indenture, will not be deemed to violate clause (ii) hereof.
(j) Not to, and to use its reasonable best efforts to cause its affiliates (as defined in Rule 144 under the Act) not to, resell any of the Original Notes that have been reacquired by any of them.
(k) Not to engage, not to allow any of its subsidiaries to engage, and to use its commercially reasonable best efforts to cause its other affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Issuer makes no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Notes.
(l) Not to engage, not to allow any of its subsidiaries to engage, and to use its commercially reasonable best efforts to cause its other affiliates and any person acting on its behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Issuer makes no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) During the period of three years after the Closing Date, to furnish to the Initial Purchasers copies of such financial statements and other periodic and special reports as the Issuer may from time to time distribute generally to holders of any class of its capital stock or file with the Commission, Nasdaq or any national securities exchange, and to furnish to each Initial Purchaser who so requests a copy of each annual or other report it is required to file therewith.
(n) From and after the Closing Date, for so long as any of the Notes remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Act -6- and during any period in which the Issuer is not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange ActEXCHANGE ACT"), to make available upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes in connection with any sale of such Notes and (ii) any prospective purchaser of such Notes from any such holder or beneficial owner designated by the holder or beneficial owner. The Issuer will pay the expenses of printing and distributing such documents.
(on) To comply with all of its agreements set forth in the Registration Rights Agreement.
(po) To comply with all of its obligations set forth in the representations letter of the Issuer to DTC relating to the approval of the Notes by DTC for "book-entry" transfer and to use its best commercially reasonable efforts to obtain approval of the Notes by DTC for "book-entry" transfer.
(qp) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been prepared by the Issuer, a copy of any regularly prepared internal financial statements of the Issuer and the Guarantors its subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) all other reports and other communications (financial or otherwise) that the Issuer mails or otherwise makes available to its security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(rq) Not to distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandum.
(sr) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940.
(ts) In connection with the offering, until the Initial Purchasers shall have notified the Issuer of the completion of the resale of the Notes, not to, and not to permit any of its affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other Persons, bid for or purchase any Notes for any account in which it or any of its affiliates has a beneficial interest; and neither the Issuer nor any of its affiliates will make bids or purchases for the purpose of creating actual or apparent active trading in, or of raising the price of, the Notes.
(ut) To use its reasonable best efforts to effect the inclusion of the Original Notes in Portal.
Appears in 1 contract
Agreements of the Issuer. The Issuer covenants and agrees with the ------------------------ Initial Purchasers Purchaser as follows:
(a) To furnish the Initial Purchasers Purchaser and those persons identified by the Initial PurchasersPurchaser, without charge, with as many copies of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers Purchaser may reasonably requestrequest prior to the Closing Date. The Issuer consents to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, by the Initial Purchasers Purchaser in connection with Exempt Resales.
(b) Not to amend or supplement the Offering Memorandum prior to the Closing Date unless the Initial Purchasers Purchaser shall previously have been advised of such proposed amendment or supplement (including any document to be incorporated by reference) at least two business days prior to the proposed useof, and shall not have reasonably objected to to, such amendment or supplement within a reasonable time, but in any event not longer than two business days after being furnished with a copy of such amendment or supplement.
(c) If, during the time that an Offering Memorandum is required to be delivered in connection with any Exempt Resales after the date of this Agreement and prior to the time that the Initial Purchasers have completed their distribution consummation of the Original NotesExchange Offer, any event occurs as a result of whichshall occur that, in the judgment of the Issuer or in the judgment of counsel to the Initial PurchasersPurchaser, makes any statement of a material fact in the Offering Memorandum, as then amended or supplemented, would include an untrue statement or that requires the making of material fact any additions to or omit to state any material fact necessary changes in the Offering Memorandum in order to make the statements thereinin the Offering Memorandum, as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with any all applicable laws, the Issuer shall promptly notify the Initial Purchasers Purchaser of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Offering Memorandum so that (i) the statements in the Offering Memoran- dum, as amended or supplemented, will, in the light of the circumstances at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not be misleading and (ii) the Offering Memorandum will correct such statement or omission or effect such compliancecomply with applicable law.
(d) To cooperate with the Initial Purchasers Purchaser and counsel to the Initial Purchasers Purchaser in connection with the qualification or registration of the Original Notes under the securities laws of such jurisdictions as the Initial Purchasers Purchaser may reasonably request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, the Issuer shall not be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to file a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers Purchaser promptly and, if requested by the Initial PurchasersPurchaser, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuer shall use its reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any of the Original Notes under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes under any securities laws, the Issuer shall use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(f) Whether or not the transactions contemplated by this Agreement are consummatedconsummated or this Agreement is terminated other than by reason of a default by the Initial Purchaser, to pay all costs, expenses, fees, disbursements (including fees, expenses and disbursements of counsel to the Issuer) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution in connection with Exempt Resales of the Preliminary Offering Memorandum and the Offering Memorandum (including, without limitation, financial statements) and all amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuer and the Initial Purchasers Purchaser in connection with any meetings with prospective investors in the Original Notes, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery of the Original Notes by the Issuer to the Initial PurchasersPurchaser, (v) the qualification or registration of the Notes for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers Purchaser relating thereto), (vi) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vii) the preparation of certificates for the Notes, (viii) the application for quotation of listing on the Notes in The Portal Market ("Portal") of the National Association of Securities Dealers, Inc. ("NASD")Luxembourg Stock Exchange, including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company the Euroclear Bank S.A./N.V., as operator of the Euroclear System ("DTCEuroclear") and Clearstream Banking, societe anonyme ("Clearstream") for "book-entry" transfer, (x) the rating of the Notes by rating agencies, (xi) the fees and expenses of the Trustee and its counsel and (xii) the performance by the Issuer of its other obligations under the Note Documents. In addition, if the transactions contemplated by this Agreement are not consummated or this Agreement is terminated other than by reason of a default by the Initial Purchaser, the Issuer shall pay the fees, expenses and disbursements of counsel to the Initial Purchaser.
(g) To use the proceeds from the sale of the Original Notes in the manner described in the Offering Memorandum under the caption "Use of Proceeds."
(h) To do and perform all things reasonably required to be done and performed under this Agreement by it prior to or after the Closing Date and to satisfy all conditions precedent on its part to the delivery of the Original Notes.
(i) Not to, and not to permit any of its subsidiaries (i) to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers Purchaser or any Eligible Purchasers, or (ii) for a period of 90 days after the Closing Date, without the prior written consent of UBS Warburg, to sell, offer for sale or solicit offers to buy any debt securities with a term of one year or longer; provided that, an assumption of debt previously outstanding at an acquired company (and not issued in contemplation of such acquisition) and otherwise permitted under the terms of the Indenture, will not be deemed to violate clause (ii) hereof.
(j) Not to, and to use its reasonable best efforts to cause its affiliates (as defined in Rule 144 under the Act) not to, resell any of the Original Notes that have been reacquired by any of them.
(k) Not to engage, not to allow any of its subsidiaries to engage, and to use its reasonable best efforts to cause its other affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers Purchaser and any of their its affiliates, as to whom the Issuer makes no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Notes.
(l) Not to engage, not to allow any of its subsidiaries to engage, and to use its reasonable best efforts to cause its other affiliates and any person acting on its behalf (other than, in any case, the Initial Purchasers Purchaser and any of their its affiliates, as to whom the Issuer makes no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) During the period of three years after the Closing Date, to furnish to the Initial Purchasers copies of such financial statements and other periodic and special reports as the Issuer may from time to time distribute generally to holders of any class of its capital stock or file with the Commission, Nasdaq or any national securities exchange, and to furnish to each Initial Purchaser who so requests a copy of each annual or other report it is required to file therewith.
(n) From and after the Closing Date, for so long as any of the Notes remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Act and during any period in which the Issuer is not subject to Section 13 or 15(d) of the Securities Securi- ties Exchange Act of 1934, as amended (the "Exchange Act"), to make available upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes in connection with any sale of such Notes and (ii) any prospective purchaser of such Notes from any such holder or beneficial owner designated by the holder or beneficial owner. The Issuer will pay the expenses of printing and distributing such documents.
(on) To comply with all of its agreements set forth in the Registration Rights Agreement.
(po) To comply with all of its obligations set forth in the representations letter of the Issuer to DTC relating to the approval of the Notes by DTC Euroclear and Clearstream for "book-entry" transfer and to use its best efforts to obtain approval of the Notes by DTC Euroclear and Clearstream for "book-entry" transfer.
(qp) Prior to the Closing Date, to furnish without charge to the Initial PurchasersPurchaser, (i) as soon as they have been prepared by the Issuer, a copy of any regularly prepared final internal financial statements of the Issuer and the Guarantors its subsidiaries for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) all other reports and other communications (financial or otherwise) that the Issuer mails or otherwise makes available to its security holders and (iii) such other information as the Initial Purchasers Purchaser shall reasonably request.
(rq) Not to distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandum.
(sr) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940.
(ts) In connection with the offering, until the Initial Purchasers Purchaser shall have notified the Issuer of the completion of the resale of the Notes, not to, and not to permit any of its affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other Personspersons, bid for or purchase for any account in which it they or any of its affiliates has have a beneficial interestinterest in any Notes; and neither the Issuer nor any of its affiliates will make bids or purchases for the purpose of creating actual or apparent apparent, active trading in, or of raising the price of, the Notes.
(ut) To use its reasonable best efforts to effect cause the inclusion of Notes to be listed on the Original Notes in PortalLuxembourg Stock Exchange.
Appears in 1 contract
Agreements of the Issuer. The Issuer covenants and agrees with the ------------------------ Initial Purchasers as followsForward Sellers, Forward Counterparties and several Underwriters that:
(a) To furnish Prior to the Initial Purchasers and those persons identified by the Initial Purchasers, without charge, with as many copies termination of the offering of the Securities, the Issuer will not file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Offering Memorandum Prospectus) to the Base Prospectus (excluding any documents incorporated by reference therein) unless the Issuer has furnished you a copy of such amendment or supplement for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. The Issuer will cause the Offering MemorandumFinal Prospectus, properly completed, and any amendments or supplements thereto, as supplement thereto to be filed in a form approved by the Initial Purchasers may reasonably requestForward Sellers and the Representatives with the SEC pursuant to the applicable paragraph of Rule 424(b) under the Securities Act within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Issuer consents will promptly advise the Forward Sellers and the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the SEC pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective (other than any documents incorporated by reference therein), (iii) of any request by the SEC or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Issuer of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Preliminary Offering Memorandum and Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the Offering Memorandumwithdrawal of such stop order or relief from such occurrence or objection, and any amendments and supplements thereto required pursuant to this Agreementincluding, if necessary, by filing an amendment to the Initial Purchasers in connection with Exempt Resales.Registration Statement or a new registration statement and using its reasonable best efforts to have such amendment or new registration statement declared effective as soon as practicable;
(b) Not to amend or supplement the Offering Memorandum If, at any time prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement (including any document to be incorporated by reference) at least two business days prior to the proposed use, and shall not have reasonably objected to such amendment or supplement.
(c) If, prior to the time that the Initial Purchasers have completed their distribution filing of the Original NotesFinal Prospectus pursuant to Rule 424(b) under the Securities Act, any event occurs as a result of which, in which the judgment of the Issuer or in the judgment of counsel to the Initial Purchasers, the Offering Memorandum, as then amended or supplemented, Disclosure Package would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they are madewere made or the circumstances then prevailing not misleading, the Issuer will (i) notify promptly the Forward Sellers and 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 or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request;
(c) If, at any time when a prospectus relating to the Securities is required to be delivered under the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it is shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Offering Memorandum Final Prospectus to comply with any applicable lawsthe Securities Act or the Exchange Act, including in connection with use or delivery of the Final Prospectus, the Issuer shall promptly will (i) notify the Initial Purchasers Forward Sellers and the Representatives of any such event event, (ii) prepare and (file with the SEC, subject to the second sentence of paragraph (a) of this Section 4(b)) prepare 6, an appropriate amendment or supplement to the Offering Memorandum that or new registration statement which will correct such statement or omission or effect such compliance.compliance (iii) use its reasonable best efforts to have any amendment to the Registration Statement, or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to you in such quantities as you may reasonably request;
(d) To cooperate with As soon as practicable, the Initial Purchasers Issuer will make generally available to its security holders, the Forward Sellers and to the Representatives an earnings statement or statements of the Issuer and its subsidiaries which will satisfy the provisions of Section 9(a) and Rule 158 under the Securities Act;
(e) The Issuer will furnish to the Forward Sellers, counsel to the Initial Purchasers Forward Sellers, the Representatives and counsel for the Underwriters, without charge, copies (which may be electronic copies) of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by a Forward Seller, Underwriter or dealer may be required by the Securities Act (including in connection with circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Forward Sellers and the Representatives may reasonably request. The Issuer will pay the expenses of printing, if any, or other production of all documents relating to the offering;
(f) The Issuer will use its commercially reasonable efforts to arrange, if necessary, for the qualification or registration of the Original Notes Securities for sale under the securities laws of any U.S. jurisdiction that the Representatives may designate and will use its commercially reasonable efforts to maintain such jurisdictions as the Initial Purchasers may reasonably request and to continue such qualification qualifications in effect so long as required for the Exempt Resales. Notwithstanding distribution of the foregoing, Securities; provided that in no event shall the Issuer shall not be required obligated to qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to file a general consent take any action that would subject it to service of process in any such jurisdiction suits, other than those arising out of the offering or sale of the Securities, or subject itself it or its subsidiaries to taxation taxation, in excess of a nominal dollar amount each case, in any such jurisdiction where it is not then now so subject;
(g) The Issuer will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which 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 any affiliate of the Issuer or any person in privity with the Issuer or any affiliate of the Issuer), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the SEC in respect of, 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, any other shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock; or publicly announce an intention to effect any such transaction, for a period of 30 days after the date of this Underwriting Agreement, provided, however, that (i) the Operating Partnership may issue OP Units as consideration in the acquisition of one or more properties; (ii) the Issuer may issue shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock pursuant to any director or employee equity incentive plan of the Issuer described in the Registration Statement, the Disclosure Package and the Final Prospectus; (iii) the Issuer may file one or more registration statements on Form S-8 with respect to any director or employee equity incentive plan of the Issuer referred to in the Registration Statement, the Disclosure Package and the Final Prospectus; (iv) the Issuer may enter into and issue and deliver Common Stock pursuant to the Forward Sales Agreements; (v) the Issuer may issue and deliver Common Stock pursuant to forward sale transactions entered into prior to the date of this Underwriting Agreement under its at-the-market equity offering programs; (vi) the Issuer may file prospectus supplements (including any amendments or supplements thereto) in connection with existing contractual agreements, provided that the black-out periods indicated in such contractual agreements shall be in effect; and (vii) the Issuer may issue (x) Common Stock or securities convertible into or exchangeable or exercisable for shares of Common Stock in the aggregate not to exceed 10% of the number of shares of Common Stock outstanding, on a non-diluted basis in connection with other acquisitions of real property or real property companies and (y) Common Stock upon conversion or exchange of any securities issued pursuant to (i) or (vii)(x) above or pursuant to Section 8.5 of the Operating Partnership’s amended and restated agreement of limited partnership; provided that, in the case of clauses (i), (ii) and (vii), the securities issued are subject to the terms of a lock-up or similar agreement restricting their sale or transfer consistent with the terms of Exhibit A hereto, for the remainder of the 30-day period referred to above.
(eh) To advise Neither the Initial Purchasers promptly andIssuer nor the Operating Partnership will take, if requested by directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Initial PurchasersExchange Act or otherwise, to confirm such advice in writing, stabilization or manipulation of the issuance by any securities commission price of any stop order suspending the qualification or exemption from qualification of any security of the Original Notes for offering Issuer to facilitate the sale or sale in any jurisdiction, or resale of the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. Securities;
(i) The Issuer shall will use its commercially reasonable best efforts to prevent qualify for taxation as a REIT under the issuance Code unless the Board of any stop order or order suspending the qualification or exemption of any Directors of the Original Notes under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending Issuer determines that it is no longer in the qualification or exemption of any best interests of the Original Notes under any securities laws, the Issuer shall use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.qualify as a REIT;
(fj) Whether or not The Issuer and the transactions contemplated by this Agreement are consummated, Operating Partnership agree to pay all costs, expenses, fees, disbursements (including fees, the costs and expenses and disbursements of counsel relating to the Issuer) reasonably incurred and stamp, documentary or similar taxes incident to and in connection withfollowing matters: (i) the preparation, printing or reproduction and distribution filing with the SEC of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Offering Memorandum Prospectus, the Final Prospectus and the Offering Memorandum (includingeach Issuer Free Writing Prospectus, without limitation, financial statements) and all amendments and supplements thereto, each amendment or supplement to any of them; (ii) all expenses the printing (including travel expenses) of the Issuer and the Initial Purchasers in connection with any meetings with prospective investors in the Original Notes, (iii) the preparation, notarization (if necessaryor reproduction) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery of the Original Notes by the Issuer to the Initial Purchasers, (v) the qualification or registration of the Notes for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counselpostage, air freight charges and charges for counting and packaging) to the Initial Purchasers relating thereto), (vi) the furnishing of such copies of the Registration Statement, each Preliminary Offering Memorandum Prospectus, the Final Prospectus and the Offering Memorandumeach Issuer Free Writing Prospectus, and all amendments and or supplements theretoto any of them, as may may, in each case, be reasonably requested for use in connection with Exempt Resales, the offering and sale of the Securities; (viiiii) the preparation preparation, printing, authentication, issuance and delivery of certificates for the NotesSecurities, including any stamp or transfer taxes, in connection with the original issuance and sale of the securities; (iv) the printing (or reproduction) and delivery of this Underwriting Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the NYSE; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification, up to an aggregate $10,000); (vii) any filings required to be made with the FINRA (including filing fees and the reasonable fees and expenses of counsel for the Underwriters (up to $10,000) relating to such filings); (viii) the application for quotation transportation and other expenses incurred by or on behalf of Issuer representatives in connection with presentations to prospective purchasers of the Notes Securities (except that the cost of any aircraft chartered for use in The Portal Market ("Portal") of such presentations shall be split evenly between the National Association of Securities DealersIssuer, Inc. ("NASD"on the one hand, and the Underwriters, on the other hand), including, but not limited to, all listing fees and expenses, ; (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes by rating agencies, (xi) the fees and expenses of the Trustee Issuer’s accountants and its the fees and expenses of counsel (including local and special counsel) for the Issuer; (x) the fees and expenses of any transfer agent or register for the Securities; and (xiixi) all other costs and expenses incident to the performance by the Issuer of its other obligations under the Note Documentshereunder.
(gk) To use the proceeds from the sale of the Original Notes in the manner described in the Offering Memorandum under the caption "Use of Proceeds."
(h) To do and perform all things required to be done and performed under this Agreement by The Issuer agrees that, unless it prior to has or after the Closing Date and to satisfy all conditions precedent on its part to the delivery of the Original Notes.
(i) Not to, and not to permit any of its subsidiaries (i) to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers or any Eligible Purchasers, or (ii) for a period of 90 days after the Closing Date, without shall have obtained the prior written consent of UBS Warburgthe Forward Sellers and the Representatives, and each Underwriter, severally and not jointly, agrees with the Issuer that, unless it has or shall have obtained, as the case may be, the prior written consent of the Issuer, it has not made and will not make any offer relating to sell, offer for sale the Securities that would constitute an Issuer Free Writing Prospectus or solicit offers that would otherwise constitute a Free Writing Prospectus required to buy any debt securities be filed by the Issuer with a term of one year the SEC or longerretained by the Issuer under Rule 433 under the Securities Act; provided that, an assumption of debt previously outstanding at an acquired company (and not issued in contemplation of such acquisition) and otherwise permitted under that the terms prior written consent of the Indenture, will not parties hereto shall be deemed to violate clause (ii) hereof.
(j) Not to, and to use its reasonable best efforts to cause its affiliates (as defined have been given in Rule 144 under the Act) not to, resell any respect of the Original Notes that have been reacquired by any of them.
(k) Not to engage, not to allow any of its subsidiaries to engage, and to use its reasonable best efforts to cause its other affiliates Free Writing Prospectuses included in Schedule III hereto and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Issuer makes no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Notes.
(l) Not to engage, not to allow any of its subsidiaries to engage, and to use its reasonable best efforts to cause its other affiliates and any person acting on its behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Issuer makes no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms electronic road show used in this paragraph have the meanings given to them by Regulation S.
(m) During the period of three years after the Closing Date, to furnish to the Initial Purchasers copies of such financial statements and other periodic and special reports as the Issuer may from time to time distribute generally to holders of any class of its capital stock or file with the Commission, Nasdaq or any national securities exchange, and to furnish to each Initial Purchaser who so requests a copy of each annual or other report it is required to file therewith.
(n) From and after the Closing Date, for so long as any of the Notes remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Act and during any period in which the Issuer is 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 the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes in connection with any sale of such Notes and (ii) any prospective purchaser of such Notes from any such holder or beneficial owner designated by the holder or beneficial owner. The Issuer will pay the expenses of printing and distributing such documents.
(o) To comply with all of its agreements set forth in the Registration Rights Agreement.
(p) To comply with all of its obligations set forth in the representations letter of the Issuer to DTC relating to the approval of the Notes by DTC for "book-entry" transfer and to use its best efforts to obtain approval of the Notes by DTC for "book-entry" transfer.
(q) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been prepared by the Issuer, a copy of any regularly prepared internal financial statements of the Issuer and the Guarantors for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) all other reports and other communications (financial or otherwise) that the Issuer mails or otherwise makes available to its security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(r) Not to distribute prior to the Closing Date any offering material in connection with the offer and sale offering of the Original Notes other than Securities. Any such Free Writing Prospectus consented to by the Preliminary Offering Memorandum Forward Sellers, the Representatives or the Issuer is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Issuer agrees that (x) it has treated and the Offering Memorandum.
(s) During the period of two years after the Closing Date orwill treat, if earlier, until such time as the Original Notes are no longer restricted securities case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as defined in Rule 144 the case may be, with the requirements of Rules 164 and 433 under the Act)Securities Act applicable to any Permitted Free Writing Prospectus, not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act including in respect of 1940.
(t) In connection timely filing with the offeringSEC, until the Initial Purchasers shall have notified the Issuer of the completion of the resale of the Notes, not to, legending and not to permit any of its affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other Persons, bid for or purchase for any account in which it or any of its affiliates has a beneficial interestrecord keeping; and neither the Issuer nor any of its affiliates will make bids or purchases for the purpose of creating actual or apparent active trading in, or of raising the price of, the Notes.
(u) To use its reasonable best efforts to effect the inclusion of the Original Notes in Portal.and
Appears in 1 contract
Samples: Underwriting Agreement (Easterly Government Properties, Inc.)
Agreements of the Issuer. The Issuer covenants and agrees with each of the ------------------------ Initial Purchasers Underwriters as follows:
(a) To furnish The Issuer will prepare a supplement to the Initial Purchasers Prospectus setting forth the amount of the Series 2006-1 Registered Notes covered thereby and those persons identified the terms thereof not otherwise specified in the Prospectus, the price at which the Series 2006-1 Registered Notes are to be purchased by the Initial PurchasersUnderwriters, without chargeeither the initial public offering price or the method by which the price at which the Series 2006-1 Registered Notes are to be sold will be determined, the selling concessions and reallowances, if any, and such other information as the Underwriters and the Issuer deem appropriate in connection with as many copies the offering of the Preliminary Offering Memorandum Series 2006-1 Registered Notes, and the Offering MemorandumIssuer will timely file such supplement to the prospectus with the SEC pursuant to Rule 424(b) under the Securities Act, and but the Issuer will not file any amendments to the Registration Statement as in effect with respect to the Series 2006-1 Registered Notes or any amendments or supplements theretoto the Prospectus, or any “free writing prospectus” to the extent required by Rule 433(d) under the Securities Act, unless it shall first have delivered copies of such amendments or supplements or “free writing prospectus” to the Underwriters, with reasonable opportunity to comment on such proposed amendment or supplement, or if the Underwriters or their counsel shall have reasonably objected thereto promptly after receipt thereof; the Issuer will immediately advise the Underwriters or the Underwriters’ counsel (i) when notice is received from the SEC that any post effective amendment to the Registration Statement has become or will become effective; and (ii) of any order or communication suspending or preventing, or threatening to suspend or prevent, the offer and sale of the Series 2006-1 Registered Notes or of any proceedings or examinations that may lead to such an order or communication, whether by or of the SEC or any authority administering any state securities or Blue Sky law, as soon as the Initial Purchasers may reasonably requestIssuer is advised thereof, and will use its best efforts to prevent the issuance of any such order or communication and to obtain as soon as possible its lifting, if issued. The Issuer consents will comply with the requirements of Rule 433 under the Securities Act applicable to any “issuer free writing prospectus,” including timely filing with the use of the Preliminary Offering Memorandum Commission, retention where required and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, by the Initial Purchasers in connection with Exempt Resaleslegending.
(b) Not to amend If at any time following the issuance of an “issuer free writing prospectus” or supplement when the Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement (including any document Prospectus is required to be incorporated by reference) at least two business days prior to delivered under the proposed use, and shall not have reasonably objected to such amendment or supplement.
(c) If, prior to the time that the Initial Purchasers have completed their distribution of the Original NotesSecurities Act, any event occurred or occurs as a result of which, which such “issuer free writing prospectus” would conflict with the information in the judgment of Registration Statement or Prospectus, or the Issuer or in the judgment of counsel to the Initial Purchasers, the Offering Memorandum, Prospectus as then amended or supplemented, supplemented would include an untrue statement of a material fact or omit to state any 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 are madethen prevailing, not misleading, or if it is necessary at any time to amend or supplement the Offering Memorandum Prospectus to comply with any applicable lawsthe Securities Act or the Rules and Regulations, the Issuer shall promptly will notify each of the Initial Purchasers Underwriters of such event and (subject to Section 4(b)) will promptly prepare and file with the SEC, at its own expense, an appropriate “issuer free writing prospectus” or amendment or supplement to the Offering Memorandum such Prospectus or other document that will correct such statement or omission or an amendment that will effect such compliance. Neither the Underwriters’ consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 6 hereof.
(c) The Issuer will immediately inform the Underwriters (i) of the receipt by the Issuer of any communication from the SEC or any state securities authority concerning the offering or sale of the Series 2006-1 Registered Notes; and (ii) of any threatened lawsuit or proceeding or of the commencement of any lawsuit or proceeding to which the Issuer is a party relating to the offering or sale of the Series 2006-1 Registered Notes.
(d) To The Issuer will furnish to the Underwriters, without charge, copies of the Registration Statement (including all documents and exhibits thereto or incorporated by reference therein), the Disclosure Package, the Prospectus, and all amendments and supplements to such documents relating to the Series 2006-1 Registered Notes, in each case in such quantities as the Underwriters may reasonably request.
(e) No amendment or supplement will be made to the Registration Statement, the Disclosure Package or Prospectus which the Underwriters shall not previously have been advised or to which it shall reasonably object after being so advised.
(f) The Issuer will cooperate with the Initial Purchasers Underwriters and with their counsel to the Initial Purchasers in connection with the qualification of, or registration procurement of exemptions with respect to, the Original Series 2006-1 Registered Notes for offering and sale by the Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers Underwriters may reasonably request designate and will file such consents to continue service of process or other documents necessary or appropriate in order to effect such qualification or exemptions; provided that in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, no event shall the Issuer shall not be required obligated to qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to file a general consent take any action which would subject it to service of process in any such jurisdiction suits, other than those arising out of the offering or subject itself to taxation in excess sale of a nominal dollar amount the Series 2006-1 Registered Notes, in any such jurisdiction where it is not then now so subject.
(eg) To advise The Issuer consents to the Initial Purchasers promptly anduse, if requested in accordance with the securities or Blue Sky laws of such jurisdictions in which the Series 2006-1 Registered Notes are offered by the Initial Purchasers, to confirm such advice in writingUnderwriters and by dealers, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuer shall use its reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any of the Original Notes under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes under any securities lawsInitial Preliminary Prospectus Supplement, the Issuer shall use its reasonable best efforts to obtain Disclosure Package and the withdrawal or lifting of such order at the earliest possible time.
(f) Whether or not the transactions contemplated Prospectus furnished by this Agreement are consummated, to pay all costs, expenses, fees, disbursements (including fees, expenses and disbursements of counsel to the Issuer) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum (including, without limitation, financial statements) and all amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuer and the Initial Purchasers in connection with any meetings with prospective investors in the Original Notes, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery of the Original Notes by the Issuer to the Initial Purchasers, (v) the qualification or registration of the Notes for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (vi) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vii) the preparation of certificates for the Notes, (viii) the application for quotation of the Notes in The Portal Market ("Portal") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes by rating agencies, (xi) the fees and expenses of the Trustee and its counsel and (xii) the performance by the Issuer of its other obligations under the Note Documents.
(g) To use the proceeds from the sale of the Original Notes in the manner described in the Offering Memorandum under the caption "Use of Proceeds."
(h) To do and perform all things required the extent, if any, that the rating or ratings provided with respect to the Series 2006-1 Registered Notes by the rating agency or agencies that initially rate the Series 2006-1 Registered Notes is conditional upon the furnishing of documents or the taking of any other actions by the Issuer, the Issuer shall cause to be done furnished such documents and performed under this Agreement by it prior such other actions to or after the Closing Date and to satisfy all conditions precedent on its part to the delivery of the Original Notesbe taken.
(i) Not to, and not to permit any of its subsidiaries (i) to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers or any Eligible Purchasers, or (ii) for a period of 90 days after the Closing Date, without the prior written consent of UBS Warburg, to sell, offer for sale or solicit offers to buy any debt securities with a term of one year or longer; provided that, an assumption of debt previously outstanding at an acquired company (and not issued in contemplation of such acquisition) and otherwise permitted under the terms of the Indenture, will not be deemed to violate clause (ii) hereof.
(j) Not to, and to use its reasonable best efforts to cause its affiliates (as defined in Rule 144 under the Act) not to, resell any of the Original Notes that have been reacquired by any of them.
(k) Not to engage, not to allow any of its subsidiaries to engage, and to use its reasonable best efforts to cause its other affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Issuer makes no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Notes.
(l) Not to engage, not to allow any of its subsidiaries to engage, and to use its reasonable best efforts to cause its other affiliates and any person acting on its behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Issuer makes no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) During the period of three years after the Closing Date, to furnish to the Initial Purchasers copies of such financial statements and other periodic and special reports as the Issuer may from time to time distribute generally to holders of any class of its capital stock or file with the Commission, Nasdaq or any national securities exchange, and to furnish to each Initial Purchaser who so requests a copy of each annual or other report it is required to file therewith.
(n) From and after the Closing Date, for so So long as any of the Series 2006-1 Registered Notes remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Act and during any period in which outstanding, the Issuer is not subject will furnish to Section 13 or 15(dthe Underwriters (i) as soon as available, a copy of each document relating to the Series 2006-1 Registered Notes required to be filed with the SEC pursuant to the Securities Exchange Act of 1934, as amended (the "“Exchange Act"”), to make available upon request or any order of the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes in connection with any sale of such Notes SEC thereunder; and (ii) such other information concerning the Issuer as the Underwriters may request from time to time.
(j) If this Agreement shall terminate or shall be terminated after execution and delivery pursuant to any prospective purchaser of such Notes from any such holder or beneficial owner designated provisions hereof (otherwise than by notice given by the holder Underwriters terminating this Agreement pursuant to Section 9 or beneficial owner. The 10 hereof) or if this Agreement shall be terminated by the Underwriters because of any failure or refusal on the part of the Issuer will pay to comply with the terms or fulfill any of the conditions of this Agreement, the Issuer agrees to reimburse the Underwriters for all out of pocket expenses (including fees and expenses of printing their counsel) reasonably incurred by it in connection herewith, but without any further obligation on the part of the Issuer for loss of profits or otherwise.
(k) The net proceeds from the sale of the Series 2006-1 Notes hereunder will be applied substantially in accordance with the description set forth in the Disclosure Package and distributing such documentsthe Prospectus.
(l) Except as stated in this Agreement, the Disclosure Package and the Prospectus, the Issuer has not taken, nor will it take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Series 2006-1 Registered Notes to facilitate the sale or resale of the Series 2006-1 Registered Notes.
(m) On or before each date that Financed Student Loans are pledged under the Indenture, the Issuer shall mark its accounting and other records, if any, relating to the Financed Student Loans and shall cause each Servicer to mark their respective computer records relating to the Financed Student Loans to show the absolute ownership by the Eligible Lender Trustee, as eligible lender of, and the interest of the Issuer in, the Financed Student Loans, and the Issuer shall not take, or shall permit any other person to take, any action inconsistent with the ownership of, and the interest of the Issuer in, the Financed Student Loans, other than as permitted by the Basic Documents.
(n) For the period beginning on the date of this Agreement and ending 90 days hereafter, none of the Issuer and any entity affiliated, directly or indirectly, with the Issuer will, without the prior written notice to the Underwriters, offer to sell or sell notes (other than the Series 2006-1 Notes) collateralized by Financed Student Loans.
(o) To comply with all of its agreements set forth in If, at the time the Registration Rights Statement became effective, any information shall have been omitted therefrom in reliance upon Rule 430A under the Securities Act, then, immediately following the execution of this Agreement, the Issuer will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b) under the Securities Act, copies of an amended Prospectus containing all information so omitted.
(p) To comply with all As soon as practicable, but not later than 16 months after the date of this Agreement, the Issuer will make generally available to its obligations set forth in securityholders an earnings statement covering a period of at least 12 months beginning after the representations letter later of (i) the effective date of the Issuer to DTC relating Registration Statement; (ii) the effective date of the most recent post effective amendment to the approval Registration Statement to become effective prior to the date of this Agreement; and (iii) the date of the Notes by DTC for "bookIssuer’s most recent Annual Report or Form 10-entry" transfer and K filed with the Commission prior to use its best efforts to obtain approval the date of this Agreement, which will satisfy the provisions of Section 11(a) of the Notes by DTC for "book-entry" transferSecurities Act.
(q) Prior The Depositor and College Loan acknowledge and agree that the Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the Closing Date, to furnish without charge Depositor and College Loan with respect to the Initial Purchasers, (i) as soon as they have been prepared by the Issuer, a copy of any regularly prepared internal financial statements offering of the Issuer and the Guarantors for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, Series 2006-1 Notes contemplated hereby (ii) all other reports and other communications (financial or otherwise) that the Issuer mails or otherwise makes available to its security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(r) Not to distribute prior to the Closing Date any offering material including in connection with determining the offer and sale terms of the Original Notes other than the Preliminary Offering Memorandum offering) and the Offering Memorandum.
(s) During the period of two years after the Closing Date or, if earlier, until such time not as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be a financial advisor or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940.
(t) In connection with the offering, until the Initial Purchasers shall have notified the Issuer of the completion of the resale of the Notes, not fiduciary to, and not to permit any of its affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other Persons, bid for or purchase for any account in which it or any of its affiliates has a beneficial interest; and neither the Issuer nor any of its affiliates will make bids or purchases for the purpose of creating actual or apparent active trading in, or of raising the price an agent of, the Notes.
(u) To use its reasonable best efforts to effect the inclusion Depositor, College Loan or any other person. Additionally, none of the Original Notes Underwriters are advising the Depositor, College Loan or any other person as to any legal, tax, investment, accounting or regulatory matters in Portalany jurisdiction with respect to the transactions contemplated herein. The Depositor and College Loan shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Depositor or College Loan with respect thereto. Any review by the Underwriters of the Depositor or College Loan, the transaction contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Depositor or College Loan.
Appears in 1 contract
Agreements of the Issuer. The Issuer covenants and agrees with the ------------------------ Initial Purchasers as followsForward Sellers, Forward Counterparties and several Underwriters that:
(a) To furnish Prior to the Initial Purchasers and those persons identified by the Initial Purchasers, without charge, with as many copies termination of the offering of the Securities, the Issuer will not file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Offering Memorandum Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement (excluding any documents incorporated by reference therein) unless the Issuer has furnished you a copy of such amendment or supplement for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. The Issuer will cause the Offering MemorandumFinal Prospectus, properly completed, and any amendments or supplements thereto, as supplement thereto to be filed in a form approved by the Initial Purchasers may reasonably requestForward Sellers and the Representatives with the SEC pursuant to the applicable paragraph of Rule 424(b) under the Securities Act within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Issuer consents will promptly advise the Forward Sellers and the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the SEC pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement shall have been filed with the SEC, (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective (other than any documents incorporated by reference therein), (iii) of any request by the SEC or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Issuer of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Preliminary Offering Memorandum and Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the Offering Memorandumwithdrawal of such stop order or relief from such occurrence or objection, and any amendments and supplements thereto required pursuant to this Agreementincluding, if necessary, by filing an amendment to the Initial Purchasers in connection with Exempt Resales.Registration Statement or a new registration statement and using its reasonable best efforts to have such amendment or new registration statement declared effective as soon as practicable;
(b) Not to amend or supplement the Offering Memorandum If, at any time prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement (including any document to be incorporated by reference) at least two business days prior to the proposed use, and shall not have reasonably objected to such amendment or supplement.
(c) If, prior to the time that the Initial Purchasers have completed their distribution filing of the Original NotesFinal Prospectus pursuant to Rule 424(b) under the Securities Act, any event occurs as a result of which, in which the judgment of the Issuer or in the judgment of counsel to the Initial Purchasers, the Offering Memorandum, as then amended or supplemented, Disclosure Package would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they are madewere made or the circumstances then prevailing not misleading, the Issuer will (i) notify promptly the Forward Sellers and 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 or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request;
(c) If, at any time when a prospectus relating to the Securities is required to be delivered under the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it is shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Offering Memorandum Final Prospectus to comply with any applicable lawsthe Securities Act or the Exchange Act, including in connection with use or delivery of the Final Prospectus, the Issuer shall promptly will (i) notify the Initial Purchasers Forward Sellers and the Representatives of any such event event, (ii) prepare and (file with the SEC, subject to the second sentence of paragraph (a) of this Section 4(b)) prepare 7, an appropriate amendment or supplement to the Offering Memorandum that or new registration statement which will correct such statement or omission or effect such compliance.compliance (iii) use its reasonable best efforts to have any amendment to the Registration Statement, or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to you in such quantities as you may reasonably request;
(d) To cooperate with As soon as practicable, the Initial Purchasers Issuer will make generally available to its security holders, the Forward Sellers and to the Representatives an earnings statement or statements of the Issuer and its subsidiaries which will satisfy the provisions of Section 11(a) and Rule 158 under the Securities Act;
(e) The Issuer will furnish to the Forward Sellers, counsel to the Initial Purchasers Forward Sellers, the Representatives and counsel for the Underwriters, without charge, copies (which may be electronic copies) of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by a Forward Seller, Underwriter or dealer may be required by the Securities Act (including in connection with circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Forward Sellers and the Representatives may reasonably request. The Issuer will pay the expenses of printing, if any, or other production of all documents relating to the offering;
(f) The Issuer will use its commercially reasonable efforts to arrange, if necessary, for the qualification or registration of the Original Notes Securities for sale under the securities laws of any U.S. jurisdiction that the Representatives may designate and will use its commercially reasonable efforts to maintain such jurisdictions as the Initial Purchasers may reasonably request and to continue such qualification qualifications in effect so long as required for the Exempt Resales. Notwithstanding distribution of the foregoing, Securities; provided that in no event shall the Issuer shall not be required obligated to qualify as a foreign corporation to do business in any jurisdiction in which where it is not now so qualified or to file a general consent take any action that would subject it to service of process in any such jurisdiction suits, other than those arising out of the offering or sale of the Securities, or subject itself it or its subsidiaries to taxation taxation, in excess of a nominal dollar amount each case, in any such jurisdiction where it is not then now so subject;
(g) The Issuer will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which 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 any affiliate of the Issuer or any person in privity with the Issuer or any affiliate of the Issuer), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the SEC in respect of, 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, any other shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock; or publicly announce an intention to effect any such transaction, for a period of 60 days after the date of this Underwriting Agreement, provided, however, that (i) the Operating Partnership may issue OP Units as consideration in the acquisition of one or more properties; (ii) the Issuer may issue shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock pursuant to any director or employee equity incentive plan of the Issuer described in the Registration Statement, the Disclosure Package and the Final Prospectus; (iii) the Issuer may file one or more registration statements on Form S-8 with respect to any director or employee equity incentive plan of the Issuer referred to in the Registration Statement, the Disclosure Package and the Final Prospectus; (iv) the Issuer may enter into and issue and deliver Common Stock pursuant to the Forward Sales Agreements; (v) the Issuer may file prospectus supplements (including any amendments or supplements thereto) in connection with existing contractual agreements, provided that the black-out periods indicated in such contractual agreements shall be in effect; and (vi) the Issuer may issue (x) Common Stock or securities convertible into or exchangeable or exercisable for shares of Common Stock in the aggregate not to exceed 10% of the number of shares of Common Stock outstanding, on a non-diluted basis in connection with other acquisitions of real property or real property companies and (y) Common Stock upon conversion or exchange of any securities issued pursuant to (i) or (vi)(x) above or pursuant to Section 8.05 of the Operating Partnership’s amended and restated agreement of limited partnership; provided that, in the case of clauses (i), (ii) and (vi), the securities issued are subject to the terms of a lock-up or similar agreement restricting their sale or transfer consistent with the terms of Exhibit A hereto, for the remainder of the 60-day period referred to above.
(eh) To advise Neither the Initial Purchasers promptly andIssuer nor the Operating Partnership will take, if requested by directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Initial PurchasersExchange Act or otherwise, to confirm such advice in writing, stabilization or manipulation of the issuance by any securities commission price of any stop order suspending the qualification or exemption from qualification of any security of the Original Notes for offering Issuer to facilitate the sale or sale in any jurisdiction, or resale of the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. Securities;
(i) The Issuer shall will use its commercially reasonable best efforts to prevent qualify for taxation as a REIT under the issuance Code unless the Board of any stop order or order suspending the qualification or exemption of any Directors of the Original Notes under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending Issuer determines that it is no longer in the qualification or exemption of any best interests of the Original Notes under any securities laws, the Issuer shall use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.qualify as a REIT;
(fj) Whether or not The Issuer and the transactions contemplated by this Agreement are consummated, Operating Partnership agree to pay all costs, expenses, fees, disbursements (including fees, the costs and expenses and disbursements of counsel relating to the Issuer) reasonably incurred and stamp, documentary or similar taxes incident to and in connection withfollowing matters: (i) the preparation, printing or reproduction and distribution filing with the SEC of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Offering Memorandum Prospectus, the Final Prospectus and the Offering Memorandum (includingeach Issuer Free Writing Prospectus, without limitation, financial statements) and all amendments and supplements thereto, each amendment or supplement to any of them; (ii) all expenses the printing (including travel expenses) of the Issuer and the Initial Purchasers in connection with any meetings with prospective investors in the Original Notes, (iii) the preparation, notarization (if necessaryor reproduction) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery of the Original Notes by the Issuer to the Initial Purchasers, (v) the qualification or registration of the Notes for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counselpostage, air freight charges and charges for counting and packaging) to the Initial Purchasers relating thereto), (vi) the furnishing of such copies of the Registration Statement, each Preliminary Offering Memorandum Prospectus, the Final Prospectus and the Offering Memorandumeach Issuer Free Writing Prospectus, and all amendments and or supplements theretoto any of them, as may may, in each case, be reasonably requested for use in connection with Exempt Resales, the offering and sale of the Securities; (viiiii) the preparation preparation, printing, authentication, issuance and delivery of certificates for the NotesSecurities, including any stamp or transfer taxes, in connection with the original issuance and sale of the securities; (iv) the printing (or reproduction) and delivery of this Underwriting Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the NYSE; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification, up to an aggregate $10,000); (vii) any filings required to be made with the FINRA (including filing fees and the reasonable fees and expenses of counsel for the Underwriters (up to $10,000) relating to such filings); (viii) the application for quotation transportation and other expenses incurred by or on behalf of Issuer representatives in connection with presentations to prospective purchasers of the Notes Securities (except that the cost of any aircraft chartered for use in The Portal Market ("Portal") of such presentations shall be split evenly between the National Association of Securities DealersIssuer, Inc. ("NASD"on the one hand, and the Underwriters, on the other hand), including, but not limited to, all listing fees and expenses, ; (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes by rating agencies, (xi) the fees and expenses of the Trustee Issuer’s accountants and its the fees and expenses of counsel (including local and special counsel) for the Issuer; (x) the fees and expenses of any transfer agent or register for the Securities; and (xiixi) all other costs and expenses incident to the performance by the Issuer of its other obligations under the Note Documentshereunder.
(gk) To use the proceeds from the sale of the Original Notes in the manner described in the Offering Memorandum under the caption "Use of Proceeds."
(h) To do and perform all things required to be done and performed under this Agreement by The Issuer agrees that, unless it prior to has or after the Closing Date and to satisfy all conditions precedent on its part to the delivery of the Original Notes.
(i) Not to, and not to permit any of its subsidiaries (i) to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers or any Eligible Purchasers, or (ii) for a period of 90 days after the Closing Date, without shall have obtained the prior written consent of UBS Warburgthe Forward Sellers and the Representatives, and each Underwriter, severally and not jointly, agrees with the Issuer that, unless it has or shall have obtained, as the case may be, the prior written consent of the Issuer, it has not made and will not make any offer relating to sell, offer for sale the Securities that would constitute an Issuer Free Writing Prospectus or solicit offers that would otherwise constitute a Free Writing Prospectus required to buy any debt securities be filed by the Issuer with a term of one year the SEC or longerretained by the Issuer under Rule 433 under the Securities Act; provided that, an assumption of debt previously outstanding at an acquired company (and not issued in contemplation of such acquisition) and otherwise permitted under that the terms prior written consent of the Indenture, will not parties hereto shall be deemed to violate clause have been given in respect of the Free Writing Prospectuses included in Schedule III hereto and any electronic road show used in connection with the offering of the Securities. Any such Free Writing Prospectus consented to by the Forward Sellers, the Representatives or the Issuer is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Issuer agrees that (iix) hereof.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 under the Securities Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the SEC, legending and record keeping; and
(jl) Not to, The Issuer will notify promptly the Forward Sellers and the Representatives if the Issuer ceases to use its reasonable best efforts be an Emerging Growth Company at any time prior to cause its affiliates the later of (as defined in Rule 144 under the Acta) not to, resell any completion of the Original Notes that have been reacquired by any distribution of them.
(k) Not to engage, not to allow any of its subsidiaries to engage, and to use its reasonable best efforts to cause its other affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Issuer makes no covenant) not to engage, in any form of general solicitation or general advertising (Securities within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Notes.
(l) Not to engage, not to allow any of its subsidiaries to engage, and to use its reasonable best efforts to cause its other affiliates and any person acting on its behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Issuer makes no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) During the period of three years after the Closing Date, to furnish to the Initial Purchasers copies of such financial statements and other periodic and special reports as the Issuer may from time to time distribute generally to holders of any class of its capital stock or file with the Commission, Nasdaq or any national securities exchange, and to furnish to each Initial Purchaser who so requests a copy of each annual or other report it is required to file therewith.
(n) From and after the Closing Date, for so long as any of the Notes remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act and during any period in which the Issuer is not subject to Section 13 or 15(d(b) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to make available upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes in connection with any sale of such Notes and (ii) any prospective purchaser of such Notes from any such holder or beneficial owner designated by the holder or beneficial owner. The Issuer will pay the expenses of printing and distributing such documents.
(o) To comply with all of its agreements set forth in the Registration Rights Agreement.
(p) To comply with all of its obligations set forth in the representations letter of the Issuer to DTC relating to the approval of the Notes by DTC for "book-entry" transfer and to use its best efforts to obtain approval of the Notes by DTC for "book-entry" transfer.
(q) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been prepared by the Issuer, a copy of any regularly prepared internal financial statements of the Issuer and the Guarantors for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) all other reports and other communications (financial or otherwise) that the Issuer mails or otherwise makes available to its security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(r) Not to distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandum.
(s) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940.
(t) In connection with the offering, until the Initial Purchasers shall have notified the Issuer of the completion of the resale of the Notes, not to, and not 60-day restricted period referred to permit any of its affiliates (as such term is defined in Rule 501(bSection 7(g) of Regulation D under the Act) to, either alone or with one or more other Persons, bid for or purchase for any account in which it or any of its affiliates has a beneficial interest; and neither the Issuer nor any of its affiliates will make bids or purchases for the purpose of creating actual or apparent active trading in, or of raising the price of, the Noteshereof.
(u) To use its reasonable best efforts to effect the inclusion of the Original Notes in Portal.
Appears in 1 contract
Samples: Underwriting Agreement (Easterly Government Properties, Inc.)
Agreements of the Issuer. The Issuer covenants and agrees with the ------------------------ Initial Purchasers as follows:
(a) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers, without charge, with as many copies of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request. The Issuer consents to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, by the Initial Purchasers in connection with Exempt ResalesResales that are in compliance with this Agreement.
(b) Not to amend or supplement the Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement (including any document to be incorporated by reference) at least two business days prior to the proposed useof, and shall not have reasonably objected to to, such amendment or supplement within a reasonable time, but in any event not longer than two business days after being furnished with a copy of such amendment or supplement. The Issuer shall promptly prepare, upon the Initial Purchasers' reasonable request, any amendment or supplement to the Offering Memorandum that may be necessary or advisable in connection with Exempt Resales.
(c) If, during the time that an Offering Memorandum is required to be delivered in connection with any Exempt Resales or market-making transactions after the date of this Agreement and prior to the time that the Initial Purchasers have completed their distribution consummation of the Original NotesExchange Offer, any event occurs as a result of whichshall occur that, in the judgment of the Issuer or in the judgment of counsel to the Initial Purchasers, makes any statement of a material fact in the Offering Memorandum, Memorandum as then amended or supplemented, would include an supplemented untrue statement or that requires the making of material fact any additions to or omit to state any material fact necessary changes in the Offering Memorandum in order to make the statements thereinin the Offering Memorandum as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with any all applicable laws, the Issuer shall promptly notify the Initial Purchasers of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Offering Memorandum so that (i) the statements in the Offering Memorandum as amended or supplemented will, in the light of the circumstances at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not be misleading and (ii) the Offering Memorandum will correct such statement or omission or effect such compliancecomply with applicable law.
(d) To cooperate with the Initial Purchasers and counsel to the Initial Purchasers in connection with the qualification or registration of the Original Notes under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may reasonably request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, neither the Issuer nor the Company nor the Guarantors shall not be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to file a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers promptly and, if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any state securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any state securities commission or other regulatory authority. The Issuer shall use its reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any of the Original Notes under any state securities or Blue Sky laws, and if at any time any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes under any state securities or Blue Sky laws, the Issuer shall use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(f) Whether or not the transactions contemplated by this Agreement are consummatedconsummated or this Agreement becomes effective or is terminated, to pay all costs, expenses, fees, disbursements (including fees, expenses and disbursements of counsel to the Issuer) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum (including, without limitation, financial statements) and all amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuer and the Initial Purchasers in connection with any meetings with prospective investors in the Original Notes, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iv) the issuance, transfer and delivery of the Original Notes by the Issuer to the Initial Purchasers, (v) the qualification or registration of the Notes for offer and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (vi) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vii) the preparation of certificates for the Notes, (viii) the application for quotation of the Notes in The Portal Market ("Portal") of the National Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all listing fees and expenses, (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes by rating agencies, (xi) the fees and expenses of the Trustee and its counsel and (xii) the performance by the Issuer of its other obligations under the Note Documents.
(g) To use the proceeds from the sale of the Original Notes in the manner described in the Offering Memorandum under the caption "Use of Proceeds."
(h) To do and perform all things required to be done and performed under this Agreement by it prior to or after the Closing Date and to satisfy all conditions precedent on its part to the delivery of the Original Notes.
(i) Not to, and not to permit any of its subsidiaries (i) to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers or any Eligible Purchasers, or (ii) for a period of 90 days after the Closing Date, without the prior written consent of UBS Warburg, to sell, offer for sale or solicit offers to buy any debt securities with a term of one year or longer; provided that, an assumption of debt previously outstanding at an acquired company (and not issued in contemplation of such acquisition) and otherwise permitted under the terms of the Indenture, will not be deemed to violate clause (ii) hereof.
(j) Not to, and to use its reasonable best efforts to cause its affiliates (as defined in Rule 144 under the Act) not to, resell any of the Original Notes that have been reacquired by any of them.
(k) Not to engage, not to allow any of its subsidiaries to engage, and to use its reasonable best efforts to cause its other affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Issuer makes no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Notes.
(l) Not to engage, not to allow any of its subsidiaries to engage, and to use its reasonable best efforts to cause its other affiliates and any person acting on its behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Issuer makes no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) During the period of three years after the Closing Date, to furnish to the Initial Purchasers copies of such financial statements and other periodic and special reports as the Issuer may from time to time distribute generally to holders of any class of its capital stock or file with the Commission, Nasdaq or any national securities exchange, and to furnish to each Initial Purchaser who so requests a copy of each annual or other report it is required to file therewith.
(n) From and after the Closing Date, for so long as any of the Notes remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Act and during any period in which the Issuer is 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 the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes in connection with any sale of such Notes and (ii) any prospective purchaser of such Notes from any such holder or beneficial owner designated by the holder or beneficial owner. The Issuer will pay the expenses of printing and distributing such documents.
(o) To comply with all of its agreements set forth in the Registration Rights Agreement.
(p) To comply with all of its obligations set forth in the representations letter of the Issuer to DTC relating to the approval of the Notes by DTC for "book-entry" transfer and to use its best efforts to obtain approval of the Notes by DTC for "book-entry" transfer.
(q) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been prepared by the Issuer, a copy of any regularly prepared internal financial statements of the Issuer and the Guarantors for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) all other reports and other communications (financial or otherwise) that the Issuer mails or otherwise makes available to its security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(r) Not to distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandum.
(s) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940.
(t) In connection with the offering, until the Initial Purchasers shall have notified the Issuer of the completion of the resale of the Notes, not to, and not to permit any of its affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other Persons, bid for or purchase for any account in which it or any of its affiliates has a beneficial interest; and neither the Issuer nor any of its affiliates will make bids or purchases for the purpose of creating actual or apparent active trading in, or of raising the price of, the Notes.
(u) To use its reasonable best efforts to effect the inclusion of the Original Notes in Portal.and
Appears in 1 contract
Samples: Notes Purchase Agreement (Eagle Picher Technologies LLC)
Agreements of the Issuer. The Issuer covenants and agrees with the ------------------------ Initial Purchasers as followshereby agrees:
(a) To furnish (i) advise the Initial Purchasers and those persons identified promptly after obtaining knowledge (and, if requested by the Initial Purchasers, without charge, with as many copies confirm such advice in writing) of (A) the issuance by any state securities commission of any stop order suspending the qualification or exemption from qualification of any of the Preliminary Offering Memorandum and Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any state securities commission or other regulatory authority, or (B) the happening of any event, during the period that is reasonably necessary for Exempt Resales, that makes any statement of a material fact made in the Offering Memorandum, and Circular untrue or that requires the making of any amendments additions to or supplements thereto, as the Initial Purchasers may reasonably request. The Issuer consents to the use of the Preliminary Offering Memorandum and changes in the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, by the Initial Purchasers in connection with Exempt Resales.
(b) Not to amend or supplement the Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement (including any document to be incorporated by reference) at least two business days prior to the proposed use, and shall not have reasonably objected to such amendment or supplement.
(c) If, prior to the time that the Initial Purchasers have completed their distribution of the Original Notes, any event occurs as a result of which, in the judgment of the Issuer or in the judgment of counsel to the Initial Purchasers, the Offering Memorandum, as then amended or supplemented, would include an untrue statement of material fact or omit to state any material fact necessary Circular in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, or it is necessary to amend or supplement the Offering Memorandum to comply with any applicable laws, the Issuer shall promptly notify the Initial Purchasers of such event and (subject to Section 4(b)ii) prepare an appropriate amendment or supplement to the Offering Memorandum that will correct such statement or omission or effect such compliance.
(d) To cooperate with the Initial Purchasers and counsel to the Initial Purchasers in connection with the qualification or registration of the Original Notes under the securities laws of such jurisdictions as the Initial Purchasers may reasonably request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, the Issuer shall not be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to file a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers promptly and, if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuer shall use its reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption from qualification of any of the Original Notes under any state securities or Blue Sky laws, and (iii) if at any time any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of any of the Original Notes under any securities such laws, the Issuer shall use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To (i) furnish the Purchasers, without charge, as many copies of the Offering Circular, and any amendments or supplements thereto, as the Purchasers may reasonably request and (ii) promptly prepare, upon the Purchasers' request, any amendment or supplement to the Offering Circular that the Purchasers deem may be reasonably necessary in connection with Exempt Resales (and the Issuer hereby consents to the use of the Preliminary Offering Circular and the Offering Circular, and any amendments and supplements thereto, by the Purchasers in connection with Exempt Resales).
(c) Not to amend or supplement the Offering Circular prior to the Closing Date unless the Purchasers shall previously have been advised thereof and shall not have objected thereto in writing within five business days after being furnished a copy thereof (unless in the opinion of counsel to the Issuer such amendment or supplement is required by law).
(d) For so long as is reasonably necessary for Exempt Resales, (i) if any event shall occur as a result of which, in the reasonable judgment of the Issuer or the Purchasers, it becomes necessary or advisable to amend or supplement the Offering Circular in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Offering Circular to comply with Applicable Law (defined below), forthwith to prepare an appropriate amendment or supplement to the Offering Circular (in form and substance reasonably satisfactory to the Purchasers) so that (A) as so amended or supplemented the Offering Circular will not include an untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) the Offering Circular will comply with Applicable Law and (ii) if it becomes necessary or advisable to amend or supplement the Offering Circular so that the Offering Circular will contain all of the information specified in, and meet the requirements of, Rule 144A(d)(4) of the Act, forthwith to prepare an appropriate amendment or supplement to the Offering Circular (in form and substance reasonably satisfactory to the Purchasers) so that the Offering Circular, as so amended or supplemented, will contain the information specified in, and meet the requirements of, such rule.
(e) To cooperate with the Purchasers and their counsel in connection with the qualification of the Notes under the securities or Blue Sky laws of such jurisdictions as the Purchasers may request and continue such qualification in effect so long as reasonably required for Exempt Resales; provided, that the Issuer shall not be required in connection therewith to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction where it is not now so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
(f) Whether or not any of the transactions contemplated by Transactions are consummated or this Agreement are consummatedis terminated, to pay (i) all costs, expenses, fees, disbursements (including fees, expenses fees and disbursements of counsel to the Issuer) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (iA) the preparation, printing and distribution of the Preliminary Offering Memorandum Circular and the Offering Memorandum Circular and all amendments and supplements thereto (including, without limitation, financial statements) statements and all amendments and supplements theretoexhibits), (ii) all expenses (including travel expenses) of the Issuer and the Initial Purchasers in connection with any meetings with prospective investors in the Original Notes, (iiiB) the preparation, notarization (if necessary) printing and delivery of the Note Documents all preliminary and final Blue Sky memoranda and all other agreements, memoranda, correspondence and other documents prepared and delivered in connection with this Agreement and with the Exempt Resalesherewith, (ivC) the issuance, transfer issuance and delivery of the Original Notes by Senior Notes, including the Issuer to the Initial Purchasers, (v) the qualification or registration fees of the Notes for offer Trustee and sale under the securities laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto)its personnel, (viD) the furnishing of such copies of the Preliminary Offering Memorandum Circular and the Offering MemorandumCircular, and all amendments and supplements thereto, as may reasonably be reasonably requested for use in connection with Exempt Resalesby the Purchasers, and (viiE) the preparation of certificates for the NotesSenior Notes (including, without limitation, printing and engraving thereof), (viiiii) all fees and expenses of the Issuer's counsel and accountants, (iii) all expenses and listing fees in connection with the application for quotation of the Senior Notes in The Portal Market ("Portal") of the National Association of Securities Dealers, Inc. ("NASD") Automated Quotation System - PORTAL ("PORTAL"), including, but not limited to, (iv) all listing fees and expenses, expenses (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes by rating agencies, (xi) the including fees and expenses of the Trustee and its counsel and (xii) the performance by the Issuer of its other obligations under the Note Documents.
(g) To use the proceeds from the sale of the Original Notes in the manner described in the Offering Memorandum under the caption "Use of Proceeds."
(h) To do and perform all things required to be done and performed under this Agreement by it prior to or after the Closing Date and to satisfy all conditions precedent on its part to the delivery of the Original Notes.
(i) Not to, and not to permit any of its subsidiaries (i) to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers or any Eligible Purchasers, or (ii) for a period of 90 days after the Closing Date, without the prior written consent of UBS Warburg, to sell, offer for sale or solicit offers to buy any debt securities with a term of one year or longer; provided that, an assumption of debt previously outstanding at an acquired company (and not issued in contemplation of such acquisition) and otherwise permitted under the terms of the Indenture, will not be deemed to violate clause (ii) hereof.
(j) Not to, and to use its reasonable best efforts to cause its affiliates (as defined in Rule 144 under the Act) not to, resell any of the Original Notes that have been reacquired by any of them.
(k) Not to engage, not to allow any of its subsidiaries to engage, and to use its reasonable best efforts to cause its other affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Issuer makes no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Actcounsel) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Notes.
(l) Not to engage, not to allow any of its subsidiaries to engage, and to use its reasonable best efforts to cause its other affiliates and any person acting on its behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Issuer makes no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) During the period of three years after the Closing Date, to furnish to the Initial Purchasers copies of such financial statements and other periodic and special reports as the Issuer may from time to time distribute generally to holders of any class of its capital stock or file with the Commission, Nasdaq or any national securities exchange, and to furnish to each Initial Purchaser who so requests a copy of each annual or other report it is required to file therewith.
(n) From and after the Closing Date, for so long as any of the Notes remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Act and during any period in which the Issuer is 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 the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes in connection with any sale of such Notes and (ii) any prospective purchaser of such Notes from any such holder or beneficial owner designated by the holder or beneficial owner. The Issuer will pay the expenses of printing and distributing such documents.
(o) To comply with all of its agreements set forth in the Registration Rights Agreement.
(p) To comply with all of its obligations set forth in the representations letter of the Issuer to DTC relating to the approval of the Senior Notes by DTC for "book-entry" transfer and to use its best efforts to obtain approval of the Notes by DTC for "book-entry" transfer.
(q) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been prepared by the Issuer, a copy of any regularly prepared internal financial statements of the Issuer and the Guarantors for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (iiv) all other reports and other communications (financial or otherwise) that the Issuer mails or otherwise makes available to its security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(r) Not to distribute prior to the Closing Date any offering material fees charged by rating agencies in connection with the offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandum.
(s) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940.
(t) In connection with the offering, until the Initial Purchasers shall have notified the Issuer of the completion of the resale rating of the Notes, not to, and not to permit any of its affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other Persons, bid for or purchase for any account in which it or any of its affiliates has a beneficial interest; and neither the Issuer nor any of its affiliates will make bids or purchases for the purpose of creating actual or apparent active trading in, or of raising the price of, the Notesif any.
(u) To use its reasonable best efforts to effect the inclusion of the Original Notes in Portal.
Appears in 1 contract
Agreements of the Issuer. The Issuer covenants and agrees with the ------------------------ Initial Purchasers as follows:
(a) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers, without charge, with as many copies of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request. The Issuer consents to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, by the Initial Purchasers in connection with Exempt ResalesResales that are in compliance with this Agreement.
(b) Not to amend or supplement the Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement (including any document to be incorporated by reference) at least two business days prior to the proposed useof, and shall not have reasonably objected to to, such amendment or supplement within a reasonable time, but in any event not longer than two business days after being furnished with a copy of such amendment or supplement. The Issuer shall promptly prepare, upon the Initial Purchasers' reasonable request, any amendment or supplement to the Offering Memorandum that may be necessary or advisable in connection with Exempt Resales.
(c) If, during the time that an Offering Memorandum is required to be delivered in connection with any Exempt Resales or market-making transactions after the date of this Agreement and prior to the time that the Initial Purchasers have completed their distribution consummation of the Original NotesExchange Offer, any event occurs as a result of whichshall occur that, in the judgment of the Issuer or in the judgment of counsel to the Initial Purchasers, makes any statement of a material fact in the Offering Memorandum, Memorandum as then amended or supplemented, would include an supplemented untrue statement or that requires the making of material fact any additions to or omit to state any material fact necessary changes in the Offering Memorandum in order to make the statements thereinin the Offering Memorandum as then amended or supplemented, in the light of the circumstances under which they are made, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with any all applicable laws, the Issuer shall promptly notify the Initial Purchasers of such event and (subject to Section 4(b)) prepare an appropriate amendment or supplement to the Offering Memorandum so that (i) the statements in the Offering Memorandum as amended or supplemented will, in the light of the circumstances at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not be misleading and (ii) the Offering Memorandum will correct such statement or omission or effect such compliancecomply with applicable law.
(d) To cooperate with the Initial Purchasers and counsel to the Initial Purchasers in connection with the qualification or registration of the Original Notes Shares under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may reasonably request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, the Issuer shall not be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to file a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers promptly and, if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any state securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any state securities commission or other regulatory authority. The Issuer shall use its reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any of the Original Notes Shares under any state securities or Blue Sky laws, and if at any time any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Original Notes Shares under any state securities or Blue Sky laws, the Issuer shall use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(f) Whether or not the transactions contemplated by this Agreement are consummatedconsummated or this Agreement becomes effective or is terminated, to pay all costs, expenses, fees, disbursements (including fees, expenses and disbursements of counsel to the Issuer, but not of counsel to the Initial Purchasers (except pursuant to clause (iv) reasonably incurred herein) or expenses of the Initial Purchasers if the transactions contemplated hereby are consummated) and stamp, documentary or similar taxes incident to and in connection with: (i) the preparation, printing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum (including, without limitation, financial statements) and all amendments and supplements thereto, (ii) all expenses (including travel expenses) of the Issuer and the Initial Purchasers in connection with any meetings with prospective investors in the Original Notes, (iii) the preparation, notarization (if necessary) preparation and delivery of the Note Operative Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iviii) the issuance, transfer and delivery by the Issuer of the Original Notes by the Issuer Shares to the Initial Purchasers, (viv) the qualification or registration of the Notes Shares for offer and sale under the securities or Blue Sky laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing a preliminary and final Blue Sky or legal investment memoranda memorandum and the fees and disbursements of counsel (including local counsel) to the Initial Purchasers relating thereto), (viv) the furnishing of such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (viivi) the preparation of certificates for the NotesShares, (viiivii) the application for quotation of the Notes Senior Preferred Stock in The Portal Market ("Portal") of the National Association of Securities Dealers, Inc. ("NASD") Automated Quotation System - PORTAL ("PORTAL"), including, but not limited to, all listing fees and expenses, (ixviii) the approval of the Notes Senior Preferred Stock by The Depository Trust Company ("DTC") for "book-entry" transfer, (xix) the rating of the Notes Senior Preferred Stock by rating agencies, (xix) the fees and expenses of the Trustee Transfer Agent and its counsel and (xiixi) the performance by the Issuer of its other obligations under the Note Operative Documents.
(g) To use the proceeds from the sale of the Original Notes in the manner described in the Offering Memorandum under the caption "Use of Proceeds."
(h) To do and perform all things required to be done and performed under this Agreement by it prior to or after the Closing Date and to satisfy all conditions precedent on its part to the delivery of the Original Notes.
(i) Not to, and not to permit any of its subsidiaries (i) to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers or any Eligible Purchasers, or (ii) for a period of 90 days after the Closing Date, without the prior written consent of UBS Warburg, to sell, offer for sale or solicit offers to buy any debt securities with a term of one year or longer; provided that, an assumption of debt previously outstanding at an acquired company (and not issued in contemplation of such acquisition) and otherwise permitted under the terms of the Indenture, will not be deemed to violate clause (ii) hereof.
(j) Not to, and to use its reasonable best efforts to cause its affiliates (as defined in Rule 144 under the Act) not to, resell any of the Original Notes that have been reacquired by any of them.
(k) Not to engage, not to allow any of its subsidiaries to engage, and to use its reasonable best efforts to cause its other affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Issuer makes no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Notes.
(l) Not to engage, not to allow any of its subsidiaries to engage, and to use its reasonable best efforts to cause its other affiliates and any person acting on its behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Issuer makes no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) During the period of three years after the Closing Date, to furnish to the Initial Purchasers copies of such financial statements and other periodic and special reports as the Issuer may from time to time distribute generally to holders of any class of its capital stock or file with the Commission, Nasdaq or any national securities exchange, and to furnish to each Initial Purchaser who so requests a copy of each annual or other report it is required to file therewith.
(n) From and after the Closing Date, for so long as any of the Notes remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Act and during any period in which the Issuer is 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 the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes in connection with any sale of such Notes and (ii) any prospective purchaser of such Notes from any such holder or beneficial owner designated by the holder or beneficial owner. The Issuer will pay the expenses of printing and distributing such documents.
(o) To comply with all of its agreements set forth in the Registration Rights Agreement.
(p) To comply with all of its obligations set forth in the representations letter of the Issuer to DTC relating to the approval of the Notes by DTC for "book-entry" transfer and to use its best efforts to obtain approval of the Notes by DTC for "book-entry" transfer.
(q) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been prepared by the Issuer, a copy of any regularly prepared internal financial statements of the Issuer and the Guarantors for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (ii) all other reports and other communications (financial or otherwise) that the Issuer mails or otherwise makes available to its security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(r) Not to distribute prior to the Closing Date any offering material in connection with the offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandum.
(s) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registeredincluding, but not registeredlimited to, under the Investment Company Act of 1940.
(t) In connection with the offeringfees, until the Initial Purchasers shall have notified the Issuer disbursements and expenses of the completion of the resale of the Notes, not to, Issuer's counsel and not to permit any of its affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other Persons, bid for or purchase for any account in which it or any of its affiliates has a beneficial interest; and neither the Issuer nor any of its affiliates will make bids or purchases for the purpose of creating actual or apparent active trading in, or of raising the price of, the Notesaccountants.
(u) To use its reasonable best efforts to effect the inclusion of the Original Notes in Portal.
Appears in 1 contract
Samples: Preferred Stock Purchase Agreement (Eagle Picher Holdings Inc)
Agreements of the Issuer. The Issuer covenants and agrees with the ------------------------ Initial Purchasers as followshereby agrees:
(a) To furnish (i) advise the Initial Purchasers and those persons identified promptly after obtaining knowledge (and, if requested by the Initial Purchasers, without charge, with as many copies confirm such advice in writing) of (A) the issuance by any state securities commission of any stop order suspending the qualification or exemption from qualification of any of the Preliminary Offering Memorandum and Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any state securities commission or other regulatory authority, or (B) the happening of any event that makes any statement of a material fact made in the Offering Memorandum, and Circular untrue or that requires the making of any amendments additions to or supplements thereto, as the Initial Purchasers may reasonably request. The Issuer consents to the use of the Preliminary Offering Memorandum and changes in the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, by the Initial Purchasers in connection with Exempt Resales.
(b) Not to amend or supplement the Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised of such proposed amendment or supplement (including any document to be incorporated by reference) at least two business days prior to the proposed use, and shall not have reasonably objected to such amendment or supplement.
(c) If, prior to the time that the Initial Purchasers have completed their distribution of the Original Notes, any event occurs as a result of which, in the judgment of the Issuer or in the judgment of counsel to the Initial Purchasers, the Offering Memorandum, as then amended or supplemented, would include an untrue statement of material fact or omit to state any material fact necessary Circular in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, or it is necessary to amend or supplement the Offering Memorandum to comply with any applicable laws, the Issuer shall promptly notify the Initial Purchasers of such event and (subject to Section 4(b)ii) prepare an appropriate amendment or supplement to the Offering Memorandum that will correct such statement or omission or effect such compliance.
(d) To cooperate with the Initial Purchasers and counsel to the Initial Purchasers in connection with the qualification or registration of the Original Notes under the securities laws of such jurisdictions as the Initial Purchasers may reasonably request and to continue such qualification in effect so long as required for the Exempt Resales. Notwithstanding the foregoing, the Issuer shall not be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to file a general consent to service of process in any such jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers promptly and, if requested by the Initial Purchasers, to confirm such advice in writing, of the issuance by any securities commission of any stop order suspending the qualification or exemption from qualification of any of the Original Notes for offering or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities commission or other regulatory authority. The Issuer shall use its reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption from qualification of any of the Original Notes under any state securities laws, or Blue Sky laws and (iii) if at any time any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of any of the Original Notes under any securities such laws, the Issuer shall use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To (i) furnish the Purchasers, without charge, as many copies of the Offering Circular, and any amendments or supplements thereto, as the Purchasers may request and (ii) promptly prepare, upon the Purchasers' request, any amendment or supplement to the Offering Circular that the Purchasers may deem to be reasonably necessary in connection with Exempt Resales (and the Issuer hereby consents to the use of the Preliminary Offering Circular and the Offering Circular, and any amendments and supplements thereto, by the Purchasers in connection with Exempt Resales).
(c) Not to amend or supplement the Offering Circular prior to the Closing Date unless the Purchasers shall previously have been advised thereof and shall not have objected thereto within five business days after being furnished a copy thereof.
(d) So long as the Purchasers shall hold any Notes, (i) if any event shall occur as a result of which, in the reasonable judgment of the Issuer or the Purchasers, it becomes necessary or advisable to amend or supplement the Offering Circular in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Offering Circular to comply with Applicable Law (defined below), forthwith to prepare an appropriate amendment or supplement to the Offering Circular (in form and substance satisfactory to the Purchasers) so that (A) as so amended or supplemented the Offering Circular will not include an untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) the Offering Circular will comply with applicable law and (ii) if it becomes necessary or advisable to amend or supplement the Offering Circular so that the Offering Circular will contain all of the information specified in, and meet the requirements of, Rule 144(A)(d)(4) of the Act, forthwith to prepare an appropriate amendment or supplement to the Offering Circular (in form and substance satisfactory to the Purchasers) so that the Offering Circular, as so amended or supplemented, will contain the information specified in, and meet the requirements of, such Rule.
(e) To cooperate with the Purchasers and the Purchasers' counsel in connection with the qualification of the Notes under the securities or Blue Sky laws of such jurisdictions as the Purchasers may request and continue such qualification in effect so long as reasonably required for Exempt Resales; PROVIDED, that the Issuer shall not be required in connection therewith to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction where it is not now so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
(f) Whether or not any of the transactions contemplated by Transactions are consummated or this Agreement are consummatedis terminated, to pay (i) all costs, expenses, fees, disbursements (including fees, expenses fees and disbursements of counsel to the Issuer) reasonably incurred and stamp, documentary or similar taxes incident to and in connection with: (iA) the preparation, printing and distribution of the Preliminary Offering Memorandum Circular and the Offering Memorandum Circular and all amendments and supplements thereto (including, without limitation, financial statements) statements and exhibits), and all amendments preliminary and supplements thereto, (ii) all expenses (including travel expenses) of the Issuer and the Initial Purchasers in connection with any meetings with prospective investors in the Original Notes, (iii) the preparation, notarization (if necessary) and delivery of the Note Documents final Blue Sky memoranda and all other agreements, memoranda, correspondence and other documents prepared and delivered in connection with this Agreement and with the Exempt Resalesherewith, (ivB) the issuanceprinting, transfer processing and distribution (including, without limitation, word processing and duplication costs) and delivery of, and performance under, each of the Documents, (C) the issuance and delivery of the Original Notes by Notes, including the Issuer to fees of the Initial PurchasersTrustee and the cost of its personnel, (vD) the qualification or registration of the Notes for offer and sale under the securities or Blue Sky laws of the several states of the United States or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary and final Blue Sky or legal investment memoranda and fees and disbursements of the Purchasers' counsel (including local counsel) relating to the Initial Purchasers relating theretosuch registration or qualification), (viE) the furnishing of such copies of the Preliminary Offering Memorandum Circular and the Offering MemorandumCircular, and all amendments and supplements thereto, as may reasonably be reasonably requested for use in connection with Exempt Resalesby the Purchasers, and (viiF) the preparation of certificates for the NotesNotes (including, without limitation, printing and engraving thereof), (viiiii) all fees and expenses of the counsel and accountants of the Issuer, (iii) all expenses and listing fees in connection with the application for quotation of the Notes in The Portal Market ("Portal") of the National Association of Securities Dealers, Inc. ("NASD") Automated Quotation System - PORTAL ("PORTAL"), including, but not limited to, (iv) all listing fees and expenses, expenses (ix) the approval of the Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes by rating agencies, (xi) the including fees and expenses of the Trustee and its counsel and (xiicounsel) the performance by of the Issuer of its other obligations under the Note Documents.
(g) To use the proceeds from the sale of the Original Notes in the manner described in the Offering Memorandum under the caption "Use of Proceeds."
(h) To do and perform all things required to be done and performed under this Agreement by it prior to or after the Closing Date and to satisfy all conditions precedent on its part to the delivery of the Original Notes.
(i) Not to, and not to permit any of its subsidiaries (i) to, sell, offer for sale or solicit offers to buy any security (as defined in the Act) that would be integrated with the sale of the Original Notes in a manner that would require the registration under the Act of the sale of the Original Notes to the Initial Purchasers or any Eligible Purchasers, or (ii) for a period of 90 days after the Closing Date, without the prior written consent of UBS Warburg, to sell, offer for sale or solicit offers to buy any debt securities with a term of one year or longer; provided that, an assumption of debt previously outstanding at an acquired company (and not issued in contemplation of such acquisition) and otherwise permitted under the terms of the Indenture, will not be deemed to violate clause (ii) hereof.
(j) Not to, and to use its reasonable best efforts to cause its affiliates (as defined in Rule 144 under the Act) not to, resell any of the Original Notes that have been reacquired by any of them.
(k) Not to engage, not to allow any of its subsidiaries to engage, and to use its reasonable best efforts to cause its other affiliates and any person acting on their behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Issuer makes no covenant) not to engage, in any form of general solicitation or general advertising (within the meaning of Regulation D under the Act) in connection with any offer or sale of the Original Notes in the United States prior to the effectiveness of a registration statement with respect to the Notes.
(l) Not to engage, not to allow any of its subsidiaries to engage, and to use its reasonable best efforts to cause its other affiliates and any person acting on its behalf (other than, in any case, the Initial Purchasers and any of their affiliates, as to whom the Issuer makes no covenant) not to engage, in any directed selling effort with respect to the Original Notes, and to comply with the offering restrictions requirement of Regulation S under the Act. Terms used in this paragraph have the meanings given to them by Regulation S.
(m) During the period of three years after the Closing Date, to furnish to the Initial Purchasers copies of such financial statements and other periodic and special reports as the Issuer may from time to time distribute generally to holders of any class of its capital stock or file with the Commission, Nasdaq or any national securities exchange, and to furnish to each Initial Purchaser who so requests a copy of each annual or other report it is required to file therewith.
(n) From and after the Closing Date, for so long as any of the Notes remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Act and during any period in which the Issuer is 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 the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes in connection with any sale of such Notes and (ii) any prospective purchaser of such Notes from any such holder or beneficial owner designated by the holder or beneficial owner. The Issuer will pay the expenses of printing and distributing such documents.
(o) To comply with all of its agreements set forth in the Registration Rights Agreement.
(p) To comply with all of its obligations set forth in the representations letter of the Issuer to DTC relating to the approval of the Notes by DTC for "book-entry" transfer and to use its best efforts to obtain approval of the Notes by DTC for "book-entry" transfer.
(q) Prior to the Closing Date, to furnish without charge to the Initial Purchasers, (i) as soon as they have been prepared by the Issuer, a copy of any regularly prepared internal financial statements of the Issuer and the Guarantors for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum, (iiv) all other reports and other communications (financial or otherwise) that the Issuer mails or otherwise makes available to its security holders and (iii) such other information as the Initial Purchasers shall reasonably request.
(r) Not to distribute prior to the Closing Date any offering material fees charged by rating agencies in connection with the offer and sale of the Original Notes other than the Preliminary Offering Memorandum and the Offering Memorandum.
(s) During the period of two years after the Closing Date or, if earlier, until such time as the Original Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act of 1940.
(t) In connection with the offering, until the Initial Purchasers shall have notified the Issuer of the completion of the resale rating of the Notes, not to, and not to permit any of its affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either alone or with one or more other Persons, bid for or purchase for any account in which it or any of its affiliates has a beneficial interest; and neither the Issuer nor any of its affiliates will make bids or purchases for the purpose of creating actual or apparent active trading in, or of raising the price of, the Notes.
(u) To use its reasonable best efforts to effect the inclusion of the Original Notes in Portal.
Appears in 1 contract