Certain Agreements of the Company. The Company agrees with the Underwriters that: (i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b). (ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. (iii) The Company will advise the Representative promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, and will not effect such amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order. (iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective. (v) If, at any time when a Prospectus relating to the Notes is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance. (vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder. (vii) The Company will furnish to each Underwriter copies of the Registration Statement, the Prospectus and any preliminary Prospectus Supplement related thereto and all amendments and supplements to such documents, in each case as soon as available and in such quantities as each Underwriter may reasonably request. (viii) The Company will cooperate with each Underwriter in arranging for the qualification of the Notes for sale and the determination of their eligibility for investment under the laws of such jurisdictions as each Underwriter designates and will continue such qualifications in effect so long as required for the distribution of the Notes; provided, however, that the Company shall not be obligated to qualify to do business in any jurisdiction in which it is not currently so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purpose. (ix) For a period from the date of this Agreement until the retirement of the Notes, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively. (x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably request. (a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement. (b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement. (xii) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof. (xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contracts. (xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 3 contracts
Samples: Underwriting Agreement (Onyx Acceptance Financial Corp), Underwriting Agreement (Onyx Acceptance Financial Corp), Underwriting Agreement (Onyx Acceptance Financial Corp)
Certain Agreements of the Company. The Company agrees with the Underwriters that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iii) The Company will advise the Representative promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, and will not effect such amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating to the Notes is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(vii) The Company will furnish to each Underwriter copies of the Registration Statement, the Prospectus and any preliminary Prospectus Supplement related thereto and all amendments and supplements to such documents, in each case as soon as available and in such quantities as each Underwriter may reasonably request.
(viii) The Company will cooperate with each Underwriter in arranging for the qualification of the Notes for sale and the determination of their eligibility for investment under the laws of such jurisdictions as each Underwriter designates and will continue such qualifications in effect so long as required for the distribution of the Notes; provided, however, that the Company shall not be obligated to qualify to do business in any jurisdiction in which it is not currently so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purpose.
(ix) For a period from the date of this Agreement until the retirement of the Notes, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably request.
(a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each of the Underwriters and identified by each of them as such (i) no later than within the date that the Prospectus Supplement is filed with respect time period allotted for such filing pursuant to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters)Letter; provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLPPricewaterhouseCoopers, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP PricewaterhouseCoopers have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx & Xxxxx LLP L.L.P. to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx & Xxxxx LLP L.L.P. on the Closing Date with respect to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 3 contracts
Samples: Underwriting Agreement (Onyx Acceptance Financial Corp), Underwriting Agreement (Onyx Acceptance Financial Corp), Underwriting Agreement (Onyx Acceptance Financial Corp)
Certain Agreements of the Company. The Company covenants and agrees with the Underwriters thatInitial Purchasers as follows:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iii) The Company will advise the Representative promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, and will not effect such amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(va) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under 90th day following the ActClosing Date, any event occurs involving the Company shall occur as a result of which the Prospectus Final Memorandum (as then amended or supplemented supplemented) would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will immediately notify the Representative on behalf of the Initial Purchasers and prepare and file with the Commission (subject furnish to the Representative's prior review pursuant to paragraph (ii) of this Section 5) Initial Purchasers an amendment or supplement which to the Final Memorandum that will correct such statement or omission omission. The Company will not at any time amend or an supplement the Final Memorandum (i) prior to having furnished the Initial Purchasers with a copy of the proposed form of the amendment or supplement and giving the Initial Purchasers a reasonable opportunity to review the same or (ii) in a manner to which will effect such compliancethe Representative on behalf of the Initial Purchasers or its counsel shall object.
(vib) As soon as practicableDuring the period referred to in Section 6(a), the Company will cause the Trust to make generally available furnish to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(vii) The Company will furnish to each Underwriter Initial Purchasers, without charge, copies of the Registration StatementFinal Memorandum (including all exhibits and documents incorporated by reference therein), the Prospectus and any preliminary Prospectus Supplement related thereto Transaction Documents, and all amendments and or supplements to such documents, in each case as soon as reasonably available and in such quantities as each Underwriter the Initial Purchasers may from time to time reasonably request.
(viiic) The At all times during the course of the private placement contemplated hereby and prior to the Closing Date, (i) the Company will cooperate with make available to each Underwriter offeree the Additional Offering Documents and information concerning any other relevant matters, as they or any of their affiliates possess or can acquire without unreasonable effort or expense, as determined in arranging for good faith by them, (ii) the qualification Company will provide each offeree the opportunity to ask questions of, and receive answers from, them concerning the terms and conditions of the Notes for sale offering and to obtain any additional information, to the determination extent they or any of their eligibility for investment under affiliates possess such information or can acquire it without unreasonable effort or expense (as determined in good faith by them), necessary to verify the laws of such jurisdictions as each Underwriter designates and will continue such qualifications in effect so long as required for the distribution accuracy of the Notes; providedinformation furnished to the offeree, however, that (iii) the Company shall will not be obligated publish or disseminate any material in connection with the offering of the Offered Notes except as contemplated herein or as consented to qualify to do business in any jurisdiction in which it is not currently so qualified or to take any action which would subject it to general or unlimited service by the Representative on behalf of process in any jurisdiction where it is not now so subject. The the Initial Purchasers, (iv) the Company will promptly advise the Underwriters Initial Purchasers promptly of the receipt by the Company of any notification with respect communication from the SEC or any state securities authority concerning the offering or sale of the Offered Notes, (v) the Company will advise the Initial Purchasers promptly of the commencement of any lawsuit or proceeding to which the Company is a party relating to the offering or sale of the Offered Notes, and (vi) the Company will advise the Initial Purchasers of the suspension or of the qualification of the Offered Notes for offering or sale in any jurisdiction jurisdiction, or the initiation or threat of any proceeding procedure for any such purpose.
(ixd) For The Company will furnish, upon the written request of any Noteholder or of any owner of a period from beneficial interest therein, such information as is specified in paragraph (d)(4) of Rule 144A under the date Securities Act (i) to such Noteholder or beneficial owner, (ii) to a prospective purchaser of this Agreement until such Note or interest therein who is a QIB and a Qualified Purchaser designated by such Noteholder or beneficial owner, or (iii) to the retirement Trustee for delivery to such Noteholder, beneficial owner or prospective purchaser, in order to permit compliance by such Noteholder or beneficial owner with Rule 144A in connection with the resale of such Note or beneficial interest therein by such holder or beneficial owner in reliance on Rule 144A unless, at the time of such request, the Issuer is subject to the reporting requirements of Section 13 or 15(d) of the NotesSecurities Exchange Act of 1934 or is exempt from such reporting requirements pursuant to and in compliance with Rule 12g3-2(b).
(e) Except as otherwise provided in the Indenture, each Offered Note will contain a legend to the effect set forth in the form of Notice to Investors attached as Exhibit A hereto.
(f) In connection with the application to list the Listed Notes on the Irish Stock Exchange, the Company will furnish from time to the Underwriters copies time any and all documents, instruments, information and commercially reasonable undertakings and publish all advertisements or other material that may be necessary in order to effect such listing and use commercially reasonable efforts to maintain such listing until none of the annual statements such Notes is outstanding or until such time as payment of compliance delivered to the Indenture Trustee pursuant to Section 3.09 principal, interest and any additional amounts (if any) in respect of the Indenture and Section 3.10 of the Servicing Agreementall such Notes have been duly provided for, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after whichever is earlier; provided that if such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstandinglisting can no longer be reasonably maintained, the Company will furnish use its best efforts to you as soon as practicable, (A) all documents distributedobtain and maintain the quotation for, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to timelisting of, such Notes on such other information stock exchange or exchanges in the possession of European Union as the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you Initial Purchasers may reasonably request.
(a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 3 contracts
Samples: Purchase Agreement (NewStar Financial, Inc.), Purchase Agreement (NewStar Financial, Inc.), Purchase Agreement (NewStar Financial, Inc.)
Certain Agreements of the Company. The Company agrees with the Underwriters Initial Purchaser that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative CSFBC promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the RepresentativeCSFBC's consent, which consent will shall not be unreasonably be withheldwithheld or delayed. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Initial Purchaser, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify CSFBC of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither CSFBC's consent to, nor its delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter CSFBC copies of the Registration Statement, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to any such documentsdocument, in each case as soon as available and in such quantities as each Underwriter may CSFBC reasonably requestrequests. Subject to the terms of the Securityholders Agreement with respect to the Shares, at any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to CSFBC and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the additional information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities (the "Additional Company Information"). The Company will pay the expenses of printing and distributing to the Initial Purchaser all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States as each Underwriter CSFBC designates and will continue such qualifications in effect so long as required for the distribution resale of the NotesOffered Securities by the Initial Purchaser; provided, however, that the Company shall will not be obligated required to qualify as a foreign corporation or to do file a general consent to service of process or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not currently so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction such state where it is not now then required to be so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect qualified or subject to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposetaxation.
(ixd) For a During the period from the date of this Agreement until the retirement of the Notesthree years hereafter, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, CSFBC as soon as practicable after the end of each fiscal year, a copy of its annual report to shareholders for such statements year; and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you CSFBC, as soon as practicableavailable, a copy of each report and any definitive proxy statement of it filed with the Commission under the Exchange Act or mailed to holders of Offered Securities or of any securities of the Company which have been registered under Section 12 of the Exchange Act.
(Ae) all documents distributedDuring the period of two years after the Closing Date, the Company will, upon request, furnish to CSFBC, and upon request, furnish to any holder of Offered Securities, a copy of the restrictions on transfer applicable to the Offered Securities.
(f) During the period of two years after the Closing Date, the Company will not and will not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Offered Securities that have been reacquired by any of them.
(g) During the period of two years after the Closing Date, the Company will not become an open-end investment company, unit investment trust or caused face-amount certificate company that is or is required to be distributedregistered under Section 8 of the Investment Company Act.
(h) penses in connection with the execution, by issue, authentication, packaging and initial delivery of the Servicer Offered Securities and, as applicable, the Exchange Securities, and the printing of the Offering Document and amendments and supplements thereto, and any other document relating to the Noteholdersissuance, offer, sale and delivery of the Offered Securities and as applicable, the Exchange Securities; (Biii) all documents filed, or caused to be filed, the cost of listing the Offered Securities and qualifying the Offered Securities for trading in The PortalSM Market ("PORTAL") and any expenses incidental thereto; (iv) the cost of any advertising approved by the Company in connection with the Commission pursuant issue of the Offered Securities; and (v) expenses incurred in printing and distributing any Offering Document (including any amendments and supplements thereto) to or at the direction of the Initial Purchaser. In addition, the Company will pay the reasonable fees and expenses of Cahill Gordon & Reindel, special counsel to the Exchange Act, any order Initial Pxxxxxxxx. Xxxx xxxty xxxx pay its own expenses in connection with attending or hosting meetings with prospective purchasers of the Commission thereunder or pursuant to a "no-action" letter Offered Securities from the staff Initial Purchaser.
(i) In connection with the offering, until CSFBC shall have notified the Company of the Commission and (C) from time to timecompletion of the resale of the Offered Securities, such other information in the possession none of the Company concerning or any of its respective affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and none of them nor any of their affiliates will make bids or purchases for the Trust purpose of creating actual, or apparent, active trading in, or of raising the price of, the Offered Securities.
(j) For a period of 120 days after the date of the initial offering of the Offered Securities by the Initial Purchaser, except as described in the section entitled "The Transactions" in the Offering Document, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any United States dollar- denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue. The Company will not at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable to the offer and sale of the Offered Securities.
(k) The Company will use the net proceeds from the sale of the Offered Securities in substantially the manner described in the Offering Document under the caption "Use of Proceeds".
(l) None of the Company or any of its subsidiaries will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would be integrated with the sale of the Offered Securities in a manner that would require the registration under the Securities Act of the sale to the Initial Purchaser of the Offered Securities or to take any other information concerning action that would result in the resale of the Offered Securities not being exempt from registration under the Securities Act.
(m) None of the Company filed or any of its subsidiaries will 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 any security of the Company to facilitate the resale of the Offered Securities. Except as permitted by the Securities Act, the Company will not distribute any (i) preliminary offering memorandum or offering memorandum, including without limitation, the Offering Document, or (ii) other offering material in connection with any governmental the offering and sale of the Offered Securities.
(n) On the Closing Date, the Company shall deliver to the Initial Purchaser Secretary's Certificates reasonably satisfactory to the Initial Purchaser which shall include the following documents with respect to the Company and each of the Company's U.S. subsidiaries: (1) certificates of incorporation or regulatory authority which is otherwise publicly available formation, as you applicable, (2) by-laws or other similar governing documents, (3) resolutions and (4) certificates of good standing and/or qualification to do business as a foreign corporation in such jurisdictions as the Initial Purchaser may reasonably request.
(ao) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts Initial Purchaser to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form copy of the opinions delivered by Xxxxxxx Xxxxx LLP on in connection with the Closing Date with respect to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) consummation of the Servicing Agreement and (ii) on or before each Prefunding Transfer DateCredit Agreement, which opinions shall expressly state that the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of Initial Purchaser is justified in relying upon the Servicing Agreementopinions therein.
Appears in 3 contracts
Samples: Purchase Agreement (Cb Richard Ellis Services Inc), Purchase Agreement (Cb Richard Ellis Services Inc), Purchase Agreement (Koll Donald M)
Certain Agreements of the Company. The Company agrees with the Underwriters that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Basic Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iii) The Company will advise the Representative promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, and will not effect such amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating to the Notes is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(vii) The Company will furnish to each Underwriter copies of the Registration Statement, the Prospectus and any preliminary Prospectus Supplement related thereto and all amendments and supplements to such documents, in each case as soon as available and in such quantities as each Underwriter may reasonably request.
(viii) The Company will cooperate with each Underwriter in arranging for the qualification of the Notes for sale and the determination of their eligibility for investment under the laws of such jurisdictions as each Underwriter designates and will continue such qualifications in effect so long as required for the distribution of the Notes; provided, however, that the Company shall not be obligated to qualify to do business in any jurisdiction in which it is not currently so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purpose.
(ix) For a period from the date of this Agreement until the retirement of the Notes, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably request.
(a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each of the Underwriters and identified by each of them as such (i) no later than within the date that the Prospectus Supplement is filed with respect time period allotted for such filing pursuant to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters)Letter; provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLPPricewaterhouseCoopers, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP PricewaterhouseCoopers have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP Andrews & Kurth L.L.P. to deliver to the Underwriters on or before the Prefunding bexxxx xxe Pxxxxxding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the UnderwritersUnderwriters , with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP Andrews & Kurth L.L.P. on the Closing Date with respect to the Funded ContractsXxxxxx Coxxxxxts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 2 contracts
Samples: Underwriting Agreement (Onyx Acceptance Financial Corp), Underwriting Agreement (Onyx Acceptance Financial Corp)
Certain Agreements of the Company. The Company agrees with the Underwriters Purchaser that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative Purchaser promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the RepresentativePurchaser's consent, which consent will not be unreasonably be withheldwithheld or delayed. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Securities by the Purchaser, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify the Purchaser of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, as reasonably necessary, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither the Purchaser's consent to, nor its delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter the Purchaser copies of the Registration Statementany preliminary offering circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as each Underwriter may reasonably requestthe Purchaser requests, and the Company will furnish to the Purchaser on the date hereof two copies of the Offering Document signed by a duly authorized officer of the Company, one of which will include the independent accountants' reports therein manually signed by such independent accountants. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to the Purchaser and, upon request of holders and prospective purchasers of the Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Securities. The Company will pay the expenses of printing and distributing to the Purchaser, such holders and prospective purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Securities for sale and the determination of their eligibility for investment under the applicable laws of such jurisdictions in the United States and Canada as each Underwriter the Purchaser reasonably designates and the Company agrees to and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedSecurities by the Purchaser, however, provided that the Company shall will not be obligated required to qualify as a foreign corporation or dealer in Securities or to do business file a general consent to service of process in any such jurisdiction or subject itself to taxation in any jurisdiction in which it is not currently so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now otherwise so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purpose.
(ixd) For a During the period from the date of this Agreement until the retirement of the Notestwo years hereafter, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing AgreementPurchaser, as soon as practicable available after the end of each fiscal year, a copy of its annual report to equity-holders for such statements year; and reports are furnished to during the Indenture Trustee and Owner Trustee respectively.
(x) So long as any period of the Notes are outstandingtwo years hereafter, the Company will furnish to you the Purchaser (i) as soon as practicableavailable, (A) all documents distributeda copy of each description of reports, notices or caused communications sent to be distributedsecurityholders, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (Cii) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you the Purchaser may reasonably request.
(ae) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date or until the Securities are registered under the Securities Act, the Company shall notwill, upon request, furnish to the Purchaser and shall instruct any holder of Securities a copy of the Servicer not to, take any action inconsistent with restrictions on transfer applicable to the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust AgreementSecurities.
(bf) On or before During the related Prefunding period of two years after the Closing Date, the Company shall cause will not, and will not permit any of its computer records for affiliates (as defined in Rule 144 under the related Prefunded Contracts to be marked to show the Trust's absolute ownership Securities Act) to, resell any of the related Prefunded Contracts and shall cause Securities that have been reacquired by any of them.
(g) During the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and two years after the related Prefunding Closing Date, the Company shall notwill not be or become, and shall instruct an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Servicer not toInvestment Company Act.
(h) The Company will pay all expenses incidental to the performance of its obligations under this Agreement, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Registration Rights Agreement, including (i) the fees and expenses of the Trustee and its counsel; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Securities and, as applicable, the Exchange Securities (as defined in the Registration Rights Agreement), the preparation and printing of this Agreement, the Registration Rights Agreement, the Securities, the Indenture, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Securities and as applicable, the Exchange Securities; (iii) the cost of listing the Securities and any expenses incidental thereto; (iv) the cost of any advertising approved by the Company in connection with the issue of the Securities; (v) any reasonable expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Securities or the Exchange Securities for sale under the laws of such jurisdictions in the United States and Canada, as the Purchaser designates and the printing of memoranda relating thereto; (vi) any fees charged by investment rating agencies for the rating of the Securities or the Exchange Securities; and (vii) reasonable expenses incurred in distributing preliminary offering circulars and the Offering Document (including any amendments and supplements thereto) to the Purchaser. The Company will also pay or reimburse the Purchaser (to the extent incurred by them) for all travel expenses of the Purchaser and the Company's officers and employees and any other expenses of the Purchaser and the Company in connection with attending or hosting meetings with prospective purchasers of the Securities from the Purchaser.
(xiii) In connection with the offering, until the Purchaser shall have notified the Company of the completion of the resale of the Securities, neither the Company nor any of its affiliates has or will, 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 in any Securities or attempt to induce any person to purchase any Securities; and neither it 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 Securities.
(j) For a period of 180 days after the date of the initial offering of the Securities by the Purchaser, the Company will not, without the prior written consent of the Purchaser, offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue (other than the Securities). The Company will file with not at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company exemption afforded by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j4(2) of the Servicing Agreement, addressed Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the Underwriters, with respect to the transfer offer and sale of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsSecurities.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 2 contracts
Samples: Purchase Agreement (Cedar Brakes I LLC), Purchase Agreement (Cedar Brakes I LLC)
Certain Agreements of the Company. The Company agrees with the Underwriters --------------------------------- Initial Purchaser that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative CSFBC promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the RepresentativeCSFBC's consent, which consent will shall not be unreasonably be withheldwithheld or delayed. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Initial Purchaser, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify CSFBC of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither CSFBC's consent to, nor its delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter CSFBC copies of the Registration Statement, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to any such documentsdocument, in each case as soon as available and in such quantities as each Underwriter may CSFBC reasonably requestrequests. Subject to the terms of the Securityholders Agreement with respect to the Shares, at any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to CSFBC and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the additional information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities (the "Additional Company Information"). The Company will pay the expenses of printing and distributing to the Initial Purchaser all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States as each Underwriter CSFBC designates and will continue such qualifications in effect so long as required for the distribution resale of the NotesOffered Securities by the Initial Purchaser; provided, however, that the Company shall will not be obligated required to qualify as a -------- ------- foreign corporation or to do file a general consent to service of process or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not currently so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction such state where it is not now then required to be so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect qualified or subject to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposetaxation.
(ixd) For a During the period from the date of this Agreement until the retirement of the Notesthree years hereafter, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, CSFBC as soon as practicable after the end of each fiscal year, a copy of its annual report to shareholders for such statements year; and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you CSFBC, as soon as practicableavailable, a copy of each report and any definitive proxy statement of it filed with the Commission under the Exchange Act or mailed to holders of Offered Securities or of any securities of the Company which have been registered under Section 12 of the Exchange Act.
(Ae) all documents distributedDuring the period of two years after the Closing Date, the Company will, upon request, furnish to CSFBC, and upon request, furnish to any holder of Offered Securities, a copy of the restrictions on transfer applicable to the Offered Securities.
(f) During the period of two years after the Closing Date, the Company will not and will not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Offered Securities that have been reacquired by any of them.
(g) During the period of two years after the Closing Date, the Company will not become an open-end investment company, unit investment trust or caused face-amount certificate company that is or is required to be distributedregistered under Section 8 of the Investment Company Act.
(h) penses in connection with the execution, by issue, authentication, packaging and initial delivery of the Servicer Offered Securities and, as applicable, the Exchange Securities, and the printing of the Offering Document and amendments and supplements thereto, and any other document relating to the Noteholdersissuance, offer, sale and delivery of the Offered Securities and as applicable, the Exchange Securities; (Biii) all documents filed, or caused to be filed, the cost of listing the Offered Securities and qualifying the Offered Securities for trading in The PortalSM Market ("PORTAL") and any expenses incidental thereto; (iv) the cost of any advertising approved by the Company in connection with the Commission pursuant issue of the Offered Securities; and (v) expenses incurred in printing and distributing any Offering Document (including any amendments and supplements thereto) to or at the direction of the Initial Purchaser. In addition, the Company will pay the reasonable fees and expenses of Xxxxxx Xxxxxx & Xxxxxxx, special counsel to the Exchange Act, any order Initial Purchaser. Each party will pay its own expenses in connection with attending or hosting meetings with prospective purchasers of the Commission thereunder or pursuant to a "no-action" letter Offered Securities from the staff Initial Purchaser.
(i) In connection with the offering, until CSFBC shall have notified the Company of the Commission and (C) from time to timecompletion of the resale of the Offered Securities, such other information in the possession none of the Company concerning or any of its respective affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and none of them nor any of their affiliates will make bids or purchases for the Trust purpose of creating actual, or apparent, active trading in, or of raising the price of, the Offered Securities.
(j) For a period of 120 days after the date of the initial offering of the Offered Securities by the Initial Purchaser, except as described in the section entitled "The Transactions" in the Offering Document, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any United States dollar- denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue. The Company will not at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable to the offer and sale of the Offered Securities.
(k) The Company will use the net proceeds from the sale of the Offered Securities in substantially the manner described in the Offering Document under the caption "Use of Proceeds".
(l) None of the Company or any of its subsidiaries will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would be integrated with the sale of the Offered Securities in a manner that would require the registration under the Securities Act of the sale to the Initial Purchaser of the Offered Securities or to take any other information concerning action that would result in the resale of the Offered Securities not being exempt from registration under the Securities Act.
(m) None of the Company filed or any of its subsidiaries will 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 any security of the Company to facilitate the resale of the Offered Securities. Except as permitted by the Securities Act, the Company will not distribute any (i) preliminary offering memorandum or offering memorandum, including without limitation, the Offering Document, or (ii) other offering material in connection with any governmental the offering and sale of the Offered Securities.
(n) On the Closing Date, the Company shall deliver to the Initial Purchaser Secretary's Certificates reasonably satisfactory to the Initial Purchaser which shall include the following documents with respect to the Company and each of the Company's U.S. subsidiaries: (1) certificates of incorporation or regulatory authority which is otherwise publicly available formation, as you applicable, (2) by-laws or other similar governing documents, (3) resolutions and (4) certificates of good standing and/or qualification to do business as a foreign corporation in such jurisdictions as the Initial Purchaser may reasonably request.
(ao) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts Initial Purchaser to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form copy of the opinions delivered by Xxxxxxx Xxxxx LLP on in connection with the Closing Date with respect to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) consummation of the Servicing Agreement and (ii) on or before each Prefunding Transfer DateCredit Agreement, which opinions shall expressly state that the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of Initial Purchaser is justified in relying upon the Servicing Agreementopinions therein.
Appears in 2 contracts
Samples: Purchase Agreement (Blum Capital Partners Lp), Purchase Agreement (Cbre Holding Inc)
Certain Agreements of the Company. The Company agrees with the Underwriters Initial Purchaser that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative Initial Purchaser promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the RepresentativeInitial Purchaser's consent, which consent will shall not be unreasonably be withheldwithheld or delayed. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Initial Purchaser, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify the Initial Purchaser of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither the Initial Purchaser's consent to, nor the Initial Purchaser's delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company has furnished to the Initial Purchaser copies of the preliminary offering circular, and will furnish to each Underwriter the Initial Purchaser copies of the Registration Statement, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as each Underwriter may the Initial Purchaser reasonably requestrequests, and the Company will furnish to the Initial Purchaser on the date hereof two copies of the Offering Document signed by a duly authorized officer of the Company, one of which will include the independent accountants' reports therein manually signed by such independent accountants. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to the Initial Purchaser and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Initial Purchaser all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter the Initial Purchaser reasonably designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedOffered Securities by the Initial Purchaser, however, provided that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which that would subject it to general or unlimited service of process or taxation in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposejurisdiction.
(ixd) For a period from so long as the date of this Agreement until the retirement of the Notes, Offered Securities remain outstanding the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing AgreementInitial Purchaser, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such statements year; and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you the Initial Purchaser (i) as soon as practicableavailable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by a copy of each report and any definitive proxy statement of the Company filed with the Securities and Exchange Commission pursuant to (the "Commission") under the Exchange ActAct or mailed to stockholders, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (Cii) from time to time, such other information in the possession of the Company concerning the Trust and any other publicly available information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you the Initial Purchaser may reasonably request.
(ae) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale will, upon request, furnish to the Company Initial Purchaser and any holder of Offered Securities information regarding the related Prefunded Contracts and the subsequent restrictions on transfer of the related Prefunded Contracts applicable to the Trust, and Offered Securities.
(f) During the period of two years after the related Prefunding Closing Date, the Company shall will not, and shall instruct will not permit any of its affiliates (as defined in Rule 144 under the Servicer not Securities Act) to, take resell any action inconsistent with of the Trust's ownership Offered Securities that have been reacquired by any of such Prefunded Contractsthem.
(g) During the period of two years after the Closing Date, other than as permitted by the Company will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(h) The Company will pay all expenses incidental to the performance of its obligations under this Agreement, the Indenture and the Trust Warrant Agreement, including (i) the fees and expenses of the Trustee and the Warrant Agent and their respective professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities, the preparation and printing of this Agreement, the Offered Securities, the Indenture, the Warrant Agreement, the Offering Document and all amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities; (iii) the cost of listing the Offered Securities and qualifying the Offered Securities for trading in The Portal(SM) Market ("PORTAL") of The Nasdaq Stock Market, Inc. and any expenses incidental thereto; (iv) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities; (v) for any expenses (including reasonable fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities for sale under the laws of such jurisdictions in the United States and Canada as the Initial Purchaser reasonably designates and the printing of memoranda relating thereto; (vi) for any fees charged by investment rating agencies for the rating of the Offered Securities; and (vii) for expenses incurred in distributing the Offering Document (including any amendments and supplements thereto) to the Initial Purchaser. The Company will also pay, or reimburse the Initial Purchaser, for one-half of the cost of private, chartered air transportation for the Initial Purchaser and the Company's officers and employees in connection with attending meetings with prospective purchasers of the Offered Securities.
(xiii) The In connection with the offering, until the Initial Purchaser shall have notified the Company of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it 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 Offered Securities.
(j) For a period of 180 days after the date of the initial offering of the Offered Securities by the Initial Purchaser, the Company will file with the Commission as part of a current report on Form 8not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any United States dollar-K each ABS Term Sheet provided to denominated debt securities issued or guaranteed by the Company by each and having a maturity of more than one year from the date of issue, or any shares of common stock of the Underwriters and identified by each Company or securities convertible into or exchangeable or exercisable for shares of them as such (i) no later than common stock of the date that the Prospectus Supplement is filed with respect Company or warrants or other rights to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date purchase shares of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing common stock of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of or publicly disclose the Underwriters must comply with their obligations pursuant intention to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLPmake any such offer, certified public accountantssale, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.pledge or
Appears in 2 contracts
Samples: Purchase Agreement (Spincycle Inc), Purchase Agreement (Spincycle Inc)
Certain Agreements of the Company. The Company agrees with the Underwriters Investors that:
(ia) Immediately following Upon the Closing, the Investors shall receive the right to appoint one representative for all of the Investors to observe the activities of the Board; such right shall expire upon the exchange and conversion of all of the Remaining Preferred Securities into shares of Common Stock.
(b) As promptly as practicable after the execution of this Agreement, and in any event not more than ten (10) days following the execution of this Agreement by all parties hereto, the Company will prepare shall prepare, and file with the Commission, a Prospectus Supplement setting forth preliminary proxy statement with respect to obtaining stockholder approval of the amount issuance and sale of Notes covered thereby shares of Common Stock pursuant to the Share Purchase Agreement and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are issuance of shares of TIDES Equity pursuant to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(iic) Prior Promptly after the date hereof, the Company shall take such action as is necessary to convene a meeting of its stockholders (the "Special Meeting"), which Special Meeting shall be held as promptly as practicable for the purpose of voting on the issuance and sale of the shares of Common Stock pursuant to the termination Share Purchase Agreement and the issuance of shares of TIDES Equity pursuant to this Agreement.
(d) At any time when the Company is not subject to Section 13 or 15(d) of the offering of the NotesExchange Act, the Company will not file any amendment promptly furnish or cause to be furnished to the Investors, a reasonable number of copies of the Registration Statement information required to be delivered to holders and prospective purchasers of shares of Common Stock pursuant to Rule 144 under the Securities Act (or supplement any successor provision thereto) in order to permit compliance with Rule 144 in connection with resales by the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing Investors of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph shares of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filingCommon Stock.
(iiie) The Company represents and warrants that, on the basis of any actions and agreements by it, there are no brokers or finders entitled to compensation in connection with the transactions contemplated by this Agreement other than Xxxxxxx Xxxxx & Company LLC. The Company shall indemnify and hold harmless the Investors from and against all fees, commissions or other payments owing by the Company to Xxxxxxx Xxxxx & Company LLC or any other person or firm acting on behalf of the Company or the Trust hereunder.
(f) The Company will advise the Representative promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, and will not effect such amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement pay all expenses incidental to the Registration Statement or the Prospectus or for any additional information performance of its obligations under this Agreement and the Company will also advise Amendments, including, but not limited to, (i) the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus fees and expenses of the issuance by Trustees and their professional advisers; (ii) all expenses in connection with the Commission of any stop order suspending the effectiveness execution, issue, authentication, packaging and initial delivery of the Registration Statement or the institution or threat shares of any proceeding for that purpose, Common Stock and the Company will use its best efforts to prevent preparation of this Agreement and the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration StatementAmendments, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus other document relating to the Notes Exchange; (iii) the reasonable fees and disbursements, up to but not to exceed $100,000, of Xxxxxxx Xxxx LLP, which is required to be delivered under acting as special counsel for the Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, Investors in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply connection with the Act, the Company promptly will prepare transactions contemplated by this Agreement; and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders registration of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(vii) The Company will furnish Registered Shares pursuant to each Underwriter copies of the Registration Statement, the Prospectus procedures in Section 10(a)(i)-(vii) hereof and the listing of the Registered Shares on the Nasdaq National Market, but excluding fees and expenses of counsel for the Investors in excess of the $100,000 fee limitation described in clause (iii) above and any preliminary Prospectus Supplement related thereto commissions or other amounts payable to brokers and all amendments and supplements any transfer taxes relating to such documents, in each case as soon as available and in such quantities as each Underwriter may reasonably requestRegistered Shares sold by the Investors.
(viiig) The Company will cooperate is not obligated to issue any shares of Common Stock or any Derivative Securities pursuant to or in connection with each Underwriter which the price payable for any such shares of Common Stock (including, without limitation, on conversion or exercise of any such Derivative Securities) is or is to be, in arranging for whole or in part, based on or derived from or by reference to any future trading price or other measure of value of such shares of Common Stock. The Company shall, within thirty (30) days after the qualification Closing Date, adopt an amendment to the Company's Bylaws to provide (i) that, unless approved by a majority vote of the Notes for sale and the determination shares of their eligibility for investment under the laws of such jurisdictions as each Underwriter designates and will continue such qualifications in effect so long as required for the distribution Common Stock of the Notes; providedCompany issued and outstanding, however, that the Company shall not be obligated to qualify to do business in sell or issue any jurisdiction in which it is not currently so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purpose.
(ix) For a period from the date of this Agreement until the retirement of the Notes, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession security of the Company concerning the Trust and any other information concerning the Company filed with any governmental convertible into, or regulatory authority exercisable or exchangeable for, shares of Common Stock ("Common Stock Equivalent"), having a conversion, exercise or exchange price per share ("Equivalent Price") which is otherwise publicly available as you may reasonably request.
(a) On or before the Closing Date the Company shall cause its computer records relating subject to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not downward adjustment based on the Contract Pool information) by the Company, each market price of the Underwriters must comply with their obligations pursuant Common Stock at the time of conversion, exercise or exchange of such security into Common Stock (except for appropriate adjustments made to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance give effect to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if anyany stock splits or stock dividends), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on that such amendment to its Bylaws may not be further amended or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) repealed without an affirmative vote of the Servicing Agreementholders of a majority of the shares of Common Stock present and entitled to vote at a duly convened meeting of stockholders.
Appears in 2 contracts
Samples: Exchange Agreement (Dt Industries Inc), Exchange Agreement (Dt Industries Inc)
Certain Agreements of the Company. The Company agrees with the Underwriters Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will promptly advise the Representative promptly of any proposal to amend or supplement the Registration Statement as filed Preliminary Offering Circular, the Final Offering Circular, the General Disclosure Package or the Prospectus, any Supplemental Marketing Material and will not effect such amendment or supplement without the Representative's ’s consent, which such consent will not to be unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the completion of the resale of the Notes is required to be delivered under by the ActPurchasers, any there occurs an event occurs or development as a result of which any document included in the Prospectus as then amended Preliminary Offering Circular or supplemented the Final Offering Circular, the General Disclosure Package or any Supplemental Marketing Material, if republished immediately following such event or development, included or would include an untrue statement of a material fact or omitted or would 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will notify the Representative of such event and promptly will prepare and file with the Commission (subject furnish, at its own expense, to the Purchasers and the dealers and to any other dealers at the request of the Representative's prior review pursuant to paragraph (ii) of this Section 5) , an amendment or supplement which will correct such statement or omission omission. Neither the Representative’s consent to, nor the Purchasers’ delivery to offerees or an investors of, any such amendment or supplement which will effect shall constitute a waiver of any of the conditions set forth in Section 6. The second sentence of this subsection does not apply to statements in or omissions from any document in the Preliminary Offering Circular or Final Offering Circular, the General Disclosure Package or any Supplemental Marketing Material made in reliance upon and in conformity with written information furnished to the Company by the Purchasers specifically for use therein, it being understood and agreed that the only such complianceinformation is that described as such in Section 8(b) hereof.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter the Representative copies of the Registration StatementPreliminary Offering Circular, each other document comprising a part of the General Disclosure Package, the Prospectus and any preliminary Prospectus Supplement related thereto and Final Offering Circular, all amendments and supplements to such documentsdocuments and each item of Supplemental Marketing Material, in each case as soon as available and in such quantities as the Representative reasonably requests. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to the Representative and, upon request, to each Underwriter may reasonably requestof the other Purchasers and, upon request of holders and prospective purchasers of the Notes, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Notes pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Notes. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter the Representative designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedNotes by the Purchasers, however, provided that the Company shall will not be obligated required to qualify as a foreign limited liability company or to do business file a general consent to service of process in any such jurisdiction in which it is not currently so qualified or to take any action which that would subject it itself to general taxation based on income or unlimited service of process revenues in any such jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect currently subject to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposetaxation.
(ixd) For a During the period from of one year after the date of this Agreement until the retirement of the NotesClosing Date, the Company will furnish to the Underwriters copies Representative and, upon request, to each of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreementother Purchasers, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any end of each fiscal year, a copy of the Notes are outstanding, Company’s annual report for such year; and the Company will furnish to you the Representative and, upon request, to each of the other Purchasers as soon as practicableavailable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by a copy of each report and any definitive proxy statement of the Company and of any Guarantor that is a reporting company filed with the Commission pursuant under the Exchange Act or mailed to unitholders. However, so long as the Company timely files reports with the Commission on its Electronic Data Gathering, Analysis and Retrieval system (“XXXXX”) as if the Company were subject to the reporting requirements of either Section 13 or Section 15(d) of the Exchange Act, any order of it is not required to furnish such reports or statements to the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably requestPurchasers.
(ae) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and one year after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for will, upon reasonable request, furnish to the related Prefunded Contracts to be marked to show the Trust's absolute ownership Representative, each of the related Prefunded Contracts other Purchasers and shall cause any holder of Notes a copy of the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Notes.
(f) During the period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and one year after the related Prefunding Closing Date, the Company shall will not, and will not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been reacquired by any of them. Neither the Company nor any affiliate will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would be integrated with the sale of the Notes in a manner that would require the registration under the Securities Act of (i) the sale of the Notes by the Company to the Purchasers, (ii) the resale of the Notes by the Purchasers to any subsequent purchasers or (iii) the resale of the Notes by such subsequent purchasers to others.
(g) During the period of one year after the Closing Date, the Company will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(h) None of the Company, its affiliates, or any person acting on their behalf (other than any Purchaser, as to whom the Company makes no representation) will engage in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) in connection with any offer or sale of the Notes in the United States or in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act or engage in any directed selling efforts (as that term is defined in Regulation S) in the United States with respect to the Notes, and the Company and its affiliates and each person acting on its or their behalf (other than the Purchasers) will comply with the offering restrictions requirement of Regulation S.
(i) The Company will cooperate with the Purchasers and use its best efforts to permit the Notes to be eligible for clearance and settlement through DTC, Euroclear and Clearstream, Luxembourg.
(j) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay all expenses incidental to the performance of its respective obligations under this Agreement, the Indenture and the Security Documents, including but not limited to: (i) the fees and expenses of the Trustee, the Common Security Trustee and any transfer agent, registrar or depositary and their professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Notes, including any withholding, stamp, transfer or other similar taxes in connection with the original issuance and sale of Notes, the preparation and printing of this Agreement, the Security Documents, the Notes, the Indenture, the Preliminary Offering Circular, any other documents comprising any part of the General Disclosure Package, the Final Offering Circular, all amendments and supplements thereto, each item of Supplemental Marketing Material and any other document relating to the issuance, offer, sale and delivery of the Notes, including the fees, disbursements and expenses of the Company’s counsel, Company’s accountants and any other advisors to the Company; (iii) all filing costs and expenses relating to the perfection of security interests in the Collateral, as set forth in the Security Documents; (iv) the cost of any advertising approved by the Company in connection with the issue of the Notes; (v) any expenses (including reasonable fees and disbursements of counsel to the Purchasers) incurred in connection with qualification of the Notes for sale under the laws of such jurisdictions in the United States and Canada as the Representative designates and the preparation and printing of memoranda relating thereto; (vi) any fees charged by investment rating agencies for the rating of the Notes; (vii) all fees, disbursements and expenses of the Independent Engineer, Market Consultant and Insurance Consultant, and any other third-party consultants who have prepared reports, attached as annexes to the General Disclosure Package and Final Offering Circular or otherwise, in connection with the transactions contemplated by this Agreement; (viii) expenses incurred in distributing the Preliminary Offering Circular, any other documents comprising any part of the General Disclosure Package, the Final Offering Circular (including any amendments and supplements thereto) and any Supplemental Marketing Material to the Purchasers; (ix) all reasonable and documented out-of-pocket expenses (other than the fees, expenses and disbursements of counsel to the Purchasers) incurred by the Representative in connection with the transactions contemplated in this Agreement; and (x) all other reasonable and documented costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. The Company will also pay or reimburse the Representative (to the extent incurred by it) for reasonable, documented, out-of-pocket costs and expenses of the Representative and the Company’s officers and employees relating to investor presentations on any “road show” in connection with the offering and sale of the Notes including, without limitation, any such travel expenses of the Company’s officers and employees and any other expenses of the Company including the chartering of airplanes.
(k) The Company will use the net proceeds received in connection with the offering of the Notes in the manner described in the “Use of Proceeds” section of the General Disclosure Package.
(l) In connection with the offering of the Notes, until the Representative shall instruct have notified the Servicer Company of the completion of the resale of the Notes, neither the Company nor any of its affiliates will, 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 any Notes or attempt to induce any person to purchase any Notes; and neither it 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.
(m) Until the Closing Date, the Company will not, directly or indirectly, take any of the following actions with respect to any United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue or any securities convertible or exchangeable or exercisable for any such securities (“Lock-Up Securities”): (i) offer, sell, issue, contract to sell, pledge or otherwise dispose of Lock-Up Securities, (ii) offer, sell, issue, contract to sell, contract to purchase or grant any option, right or warrant to purchase Lock-Up Securities, (iii) enter into any swap, hedge or any other agreement that transfers, in whole or in part, the economic consequences of ownership of Lock-Up Securities; (iv) establish or increase a put equivalent position or liquidate or decrease a call equivalent position in Lock-Up Securities within the meaning of Section 16 of the Exchange Act or (v) file with the Commission a registration statement under the Securities Act relating to Lock-Up Securities or publicly disclose the intention to take any such action (other than as contemplated by this Agreement and the Registration Rights Agreement), without the prior written consent of Xxxxxx Xxxxxxx & Co. LLC. The Company will not toat any time directly or indirectly, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided referred to the Company by each of the Underwriters and identified by each of them as such in clauses (i) no later than the date that the Prospectus Supplement is filed through (v) above with respect to "computational materials" and "structural terms sheets" (as any securities under circumstances where such terms are interpreted in offer, sale, pledge, contract or disposition would cause the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) exemption afforded by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j4(a)(2) of the Servicing Agreement, addressed Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the Underwriters, with respect to the transfer offer and sale of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsNotes.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 2 contracts
Samples: Purchase Agreement (Cheniere Energy Partners, L.P.), Purchase Agreement (Cheniere Energy Partners, L.P.)
Certain Agreements of the Company. The Company agrees and the Guarantors, jointly and severally, agree with the Underwriters Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will promptly advise the Representative promptly of any proposal to amend or supplement the Registration Statement as filed Preliminary Offering Memorandum, the Final Offering Memorandum, the General Disclosure Package or the Prospectus, any Supplemental Marketing Material and will not effect such amendment or supplement without the Representative's ’s consent, which such consent will not to be unreasonably be withheld. The Company will also advise the Representative promptly of any request timely file all reports required to be filed by the Commission for any amendment of or supplement Company pursuant to the Registration Statement or the Prospectus or for any additional information Section 13(a), 13(c) and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and 15(d) of the issuance Exchange Act for so long as deliveries of an offering memorandum are being made by the Commission of any stop order suspending Purchasers in connection with the effectiveness offering or sale of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) Securities. If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Securities by the Purchasers, any there occurs an event occurs or development as a result of which any document included in the Prospectus as then amended Preliminary Offering Memorandum or supplemented the Final Offering Memorandum, the General Disclosure Package or any Supplemental Marketing Material, if republished immediately following such event or development, included or would include an untrue statement of a material fact or omitted or would 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will notify the Representative of such event and promptly will prepare and file with the Commission (subject furnish, at its own expense, to the Purchasers and the dealers and to any other dealers at the request of the Representative's prior review pursuant to paragraph (ii) of this Section 5) , an amendment or supplement which will correct such statement or omission omission. Neither the Representative’s consent to, nor the Purchasers’ delivery to offerees or an investors of, any such amendment or supplement which will effect shall constitute a waiver of any of the conditions set forth in Section 6. The third sentence of this subsection does not apply to statements in or omissions from any document in the Preliminary Offering Memorandum or Final Offering Memorandum, the General Disclosure Package or any Supplemental Marketing Material made in reliance upon and in conformity with written information furnished to the Company by the Purchasers specifically for use therein, it being understood and agreed that the only such complianceinformation is that described as such in Section 8(b) hereof.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter the Representative copies of the Registration StatementPreliminary Offering Memorandum, each other document comprising a part of the General Disclosure Package, the Prospectus and any preliminary Prospectus Supplement related thereto and Final Offering Memorandum, all amendments and supplements to such documentsdocuments and each item of Supplemental Marketing Material, in each case as soon as available and in such quantities as the Representative reasonably requests. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to the Representative and, upon request, to each Underwriter may reasonably requestof the other Purchasers and, upon request of holders and prospective purchasers of the Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter the Representative designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedSecurities by the Purchasers, however, provided that the Company shall will not be obligated required to qualify as a foreign limited partnership or to do business file a general consent to service of process in any such jurisdiction in which it is not currently so qualified or to take any action which that would subject it itself to general taxation based on income or unlimited service of process revenues in any such jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect currently subject to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposetaxation.
(ixd) For a During the period from of one year after the date of this Agreement until the retirement of the NotesClosing Date, the Company will furnish to the Underwriters copies Representative and, upon request, to each of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreementother Purchasers, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any end of each fiscal year, a copy of the Notes are outstanding, Company’s annual report for such year; and the Company will furnish to you the Representative and, upon request, to each of the other Purchasers as soon as practicableavailable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by a copy of each report and any definitive proxy statement of the Company and of any Guarantor that is a reporting company filed with the Commission pursuant under the Exchange Act or mailed to unitholders. However, so long as the Company timely files reports with the Commission on its Electronic Data Gathering, Analysis and Retrieval system (“XXXXX”) as if the Company were subject to the reporting requirements of either Section 13 or Section 15(d) of the Exchange Act, any order of it is not required to furnish such reports or statements to the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably requestPurchasers.
(ae) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and one year after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for will, upon reasonable request, furnish to the related Prefunded Contracts to be marked to show the Trust's absolute ownership Representative, each of the related Prefunded Contracts other Purchasers and shall cause any holder of Securities a copy of the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Securities.
(f) During the period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and one year after the related Prefunding Closing Date, the Company shall will not, and will not permit any of its Affiliates to, resell any of the Securities that have been reacquired by any of them. Neither the Company nor any Affiliate will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would be integrated with the sale of the Securities in a manner that would require the registration under the Securities Act of (i) the sale of the Securities by the Company and the Guarantors to the Purchasers, (ii) the resale of the Securities by the Purchasers to any subsequent purchasers or (iii) the resale of the Securities by such subsequent purchasers to others.
(g) During the period of one year after the Closing Date, neither the Company nor any of the Guarantors will be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(h) None of the Company, the Guarantors, or their respective Affiliates, or any person acting on their behalf (other than any Purchaser, as to whom the Company and the Guarantors make no representations) will engage in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) in connection with any offer or sale of the Securities in the United States or in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act or engage in any directed selling efforts (as that term is defined in Regulation S) in the United States with respect to the Securities, and the Company, the Guarantors and their respective Affiliates and each person acting on its or their behalf (other than the Purchasers) will comply with the offering restrictions requirement of Regulation S.
(i) The Company will cooperate with the Purchasers and use its best efforts to permit the Securities to be eligible for clearance and settlement through DTC, Euroclear and Clearstream, Luxembourg.
(j) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay all expenses incidental to the performance of its obligations under this Agreement, the Indenture and the Registration Rights Agreement, including but not limited to: (i) the fees and expenses of the Trustee, the collateral agent and any transfer agent, registrar or depositary and their professional advisers for which the Company is responsible; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Securities, including any withholding, stamp, transfer or other similar taxes in connection with the original issuance and sale of Securities, the preparation and printing of this Agreement, the Securities, the Indenture, the Registration Rights Agreement, the Preliminary Offering Memorandum, any other documents comprising any part of the General Disclosure Package, the Final Offering Memorandum, all amendments and supplements thereto, each item of Supplemental Marketing Material and any other document relating to the issuance, offer, sale and delivery of the Securities, including the fees, disbursements and expenses of the Company’s counsel, Company’s accountants and any other advisors to the Company, and any fees in connection with the release of the collateral or a Security Requirement Period (as defined in the Indenture); (iii) the cost of any advertising approved by the Company in connection with the issue of the Securities; (iv) any expenses (including reasonable fees and disbursements of counsel to the Purchasers) incurred in connection with qualification of the Securities for sale under the laws of such jurisdictions in the United States and Canada as the Representative designates and the preparation and printing of memoranda relating thereto; (v) any fees charged by investment rating agencies for the rating of the Securities; (vi) expenses incurred in distributing the Preliminary Offering Memorandum, any other documents comprising any part of the General Disclosure Package, the Final Offering Memorandum (including any amendments and supplements thereto, including any form of electronic distribution) and any Supplemental Marketing Material to the Purchasers; (vii) all reasonable and documented out-of-pocket expenses (other than the fees, expenses and disbursements of counsel to the Purchasers) incurred by the Representative in connection with the transactions contemplated in this Agreement; and (viii) all other reasonable and documented costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. The Company will also pay or reimburse the Representative (to the extent incurred by it) for reasonable, documented, out-of-pocket costs and expenses of the Representative and the Company’s officers and employees relating to investor presentations on any “road show” in connection with the offering and sale of the Securities including, without limitation, any such travel expenses of the Company’s officers and employees and any other expenses of the Company including, subject to prior approval by the Company, the chartering of airplanes.
(k) The Company will use the net proceeds received in connection with the offering of the Securities in the manner described in the “Use of Proceeds” section of the General Disclosure Package.
(l) In connection with the offering of the Securities, until the Representative shall instruct have notified the Servicer Company of the completion of the resale of the Securities, neither the Company nor any of its Affiliates will, 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 any Securities or attempt to induce any person to purchase any Securities; and neither it 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 Securities.
(m) Until the Closing Date, the Company and the Guarantors will not, directly or indirectly, take any of the following actions with respect to any United States dollar-denominated debt securities issued or guaranteed by the Company or the Guarantors and having a maturity of more than one year from the date of issue or any securities convertible or exchangeable or exercisable for any such securities (“Lock-Up Securities”): (i) offer, sell, issue, contract to sell, pledge or otherwise dispose of Lock-Up Securities, (ii) offer, sell, issue, contract to sell, contract to purchase or grant any option, right or warrant to purchase Lock-Up Securities, (iii) enter into any swap, hedge or any other agreement that transfers, in whole or in part, the economic consequences of ownership of Lock-Up Securities, (iv) establish or increase a put equivalent position or liquidate or decrease a call equivalent position in Lock-Up Securities within the meaning of Section 16 of the Exchange Act or (v) file with the Commission a registration statement under the Securities Act relating to Lock-Up Securities or publicly disclose the intention to take any such action (other than as contemplated by this Agreement and the Registration Rights Agreement or in connection with pre-existing obligations with respect to debt securities issued under the Base Indenture), without the prior written consent of the Representative. The Company and the Guarantors will not toat any time directly or indirectly, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided referred to the Company by each of the Underwriters and identified by each of them as such in clauses (i) no later than the date that the Prospectus Supplement is filed through (v) above with respect to "computational materials" and "structural terms sheets" (as any securities under circumstances where such terms are interpreted in offer, sale, pledge, contract or disposition would cause the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) exemption afforded by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j4(a)(2) of the Servicing Agreement, addressed Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the Underwriters, with respect to the transfer offer and sale of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsSecurities.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 2 contracts
Samples: Purchase Agreement (Cheniere Energy Partners, L.P.), Purchase Agreement (Cheniere Energy Partners, L.P.)
Certain Agreements of the Company. The Company covenants and agrees with the Underwriters thatInitial Purchaser as follows:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iii) The Company will advise the Representative promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, and will not effect such amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(va) If, at any time when a Prospectus relating prior to the completion of distribution of the Notes is required to be delivered under (as determined by the ActInitial Purchaser), any event occurs involving the Company shall occur as a result of which the Prospectus Final Memorandum (as then amended or supplemented supplemented) would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Company will promptly notify the Initial Purchaser and prepare and furnish to the Initial Purchaser an amendment or supplement to the Final Memorandum that will correct such statement or omission. The Company will not at any time amend or supplement the Final Memorandum (i) prior to having furnished the Initial Purchaser with a copy of the proposed form of the amendment or supplement and giving the Initial Purchaser a reasonable opportunity to review the same or (ii) in a manner to which the Initial Purchaser or its counsel shall object. The Initial Purchaser’s consent to or its delivery to prospective investors of such amendment or supplement shall not constitute a waiver of any of the conditions set forth in Section 7 hereof. In the event that the Initial Purchaser shall incur any costs in connection with the reformation with a contract of sale with any investor that received the Time of Sale Information that contains an untrue statement of a material fact or failed to state a material fact necessary in order to the make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare and file with the Commission (subject Trust Depositor jointly and severally agree to reimburse the Representative's prior review pursuant to paragraph (ii) of this Section 5) an amendment or supplement which will correct Initial Purchaser for such costs, provided that the untrue statement or omission or an amendment or supplement which will effect such compliancein the Time of Sale Information did not relate solely to Initial Purchaser Information (as defined below).
(vib) As soon as practicableDuring the period referred to in Section 6(a), the Company will cause the Trust to make generally available furnish to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(vii) The Company will furnish to each Underwriter Initial Purchaser, without charge, copies of the Registration StatementFinal Memorandum (including all exhibits and documents incorporated by reference therein), the Prospectus and any preliminary Prospectus Supplement related thereto Transaction Documents and all amendments and or supplements to such documents, in each case case, as soon as reasonably available and in such quantities as each Underwriter the Initial Purchaser may from time to time reasonably request.
(viiic) The During the period referred to in Section 6(a), the Company shall promptly prepare, upon the reasonable request of the Initial Purchaser, any amendments of or supplements to the Final Memorandum that in the opinion of the Initial Purchaser may be reasonably necessary to enable the Initial Purchaser to continue to sell the Notes, subject to the approval of the Initial Purchaser’s counsel.
(d) At all times during the period referenced in Section 6(a), (i) the Company will cooperate make available to each offeree the Additional Offering Materials subject to such offeree's acceptance of the confidentiality requirements with respect thereto and such information concerning any other relevant matters as it or any of its affiliates possess or can acquire without unreasonable effort or expense, as determined in good faith by it or such affiliate, as applicable, (ii) the Company will provide each Underwriter offeree the opportunity to ask questions of, and receive answers from, it concerning the terms and conditions of the offering and to obtain any additional information, to the extent it or any of its affiliates possess such information or can acquire it without unreasonable effort or expense (as determined in arranging for good faith by it or such affiliate, as applicable), necessary to verify the qualification accuracy of the information furnished to the offeree, (iii) the Company will not publish or disseminate any material in connection with the offering of the Notes for sale and except as contemplated herein or as consented to by the determination of their eligibility for investment Initial Purchaser or in connection with the Company’s disclosure obligations under the Exchange Act, provided that no such disclosure under the Exchange Act would result in a requirement that the offering of the Notes be registered under §5 of the Securities Act, (iv) the Company will take such action as the Initial Purchaser may reasonably request to obtain an exemption from registration requirements or to qualify the Notes for offering and sale under the state securities laws of such jurisdictions in the United States of America, its territories and possessions, as each Underwriter designates and will continue such qualifications in effect so long as required for the distribution of the NotesInitial Purchaser may request; provided, however, that (v) the Company shall not be obligated to qualify to do business in any jurisdiction in which it is not currently so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters Initial Purchaser promptly of the receipt by the Company of any notification with respect communication from the SEC or any state securities authority concerning the offering, sale or exchange of the Notes, (vi) the Company will advise the Initial Purchaser promptly of the commencement of any lawsuit or proceeding to which the Company is a party relating to the offering, sale or exchange of the Notes, and (vii) the Company will advise the Initial Purchaser of the suspension or of the qualification of the Notes for offering, sale or exchange in any jurisdiction jurisdiction, or the initiation or threat of any proceeding procedure for any such purpose.
(ixe) For The Company will furnish, upon the written request of any Noteholder or of any owner of a period beneficial interest in a Note, such information as is specified in paragraph (d)(4) of Rule 144A under the Securities Act (i) to such Noteholder or beneficial owner, (ii) to a prospective purchaser of a Note or interest therein who is a QIB and a Qualified Purchaser designated by such Noteholder or beneficial owner, or (iii) to the Trustee for delivery to such Noteholder, beneficial owner or prospective purchaser, in order to permit compliance by such Noteholder or beneficial owner with Rule 144A in connection with the resale of such Note or beneficial interest therein by such holder or beneficial owner in reliance on Rule 144A unless, at the time of such request, the Trust is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or is exempt from such reporting requirements pursuant to and in compliance with Rule 12g3-2(b).
(f) Except as otherwise provided in the date Indenture, each Note will contain a legend to the effect set forth in the Final Memorandum.
(g) The Trust Depositor and the Company agree that no future offer and sale of this Agreement until Notes of the retirement Trust will be made if, as a result of the doctrine of “integration” referred to in Rule 502 under the Securities Act, such offer and sale would require the registration under the Securities Act of the offering contemplated by the Time of Sale Information and the Final Memorandum.
(h) None of the Company, the Trust Depositor nor the Trust will take or permit, or cause any of their affiliates to take, any action whatsoever which would have the effect of requiring the registration under the Securities Act of the offering or sale of the Notes contemplated by the Time of Sale Information and the Final Memorandum. The Company or the Trust Depositor will cause the filing of such statements and reports as may be required under the Securities Act or the Exchange Act.
(i) Neither the Company nor any of its affiliates or any other Person acting on their behalf shall engage, in connection with the offer and sale or exchange of the Notes, in any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act, including, but not limited to, the following:
(i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar medium or broadcast over television or radio; and
(ii) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.
(j) None of the Company will furnish or any Person acting on its behalf shall engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing AgreementNotes, and the annual independent public accountant's reports furnished Company and each Person acting on its behalf shall comply with the applicable offering restrictions requirements of Regulation S.
(k) The Company shall not solicit any offer to buy from or offer to sell or sell to any Person any Notes, except through the Initial Purchaser or with the consent of the Initial Purchaser and/or as otherwise specified in the Indenture at any time prior to the Indenture Trustee pursuant Closing Date; on or prior to Section 3.11 the Closing Date, the Company shall not publish or disseminate any material other than the Additional Offering Materials consented to by the Initial Purchaser, the Time of Sale Information and the Final Memorandum in connection with the offer or sale of the Servicing Notes as contemplated by this Agreement, as soon as practicable after such statements and reports are furnished unless the Initial Purchaser shall have consented to the Indenture Trustee use thereof; if the Company makes any press release including “tombstone” announcements, in connection with the Transaction Documents, it shall permit the Initial Purchaser to review and Owner Trustee respectivelyapprove such release in advance.
(xl) The Company shall not take, or permit or cause any of its affiliates to take, any action whatsoever which would have the effect of requiring the registration, under the Securities Act, of the offer, sale or exchange of the Notes contemplated by the Time of Sale Information or the Final Memorandum.
(m) The Company shall not solicit any offer to buy from or offer to sell to any Person any Notes, except through the Initial Purchaser.
(n) The Company shall not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any Note to facilitate the sale, resale or exchange of the Notes.
(o) The Company shall cooperate with the Initial Purchaser and use its best efforts to permit the Notes to be eligible for clearance and settlement through the facilities of The Depository Trust Company (“DTC”) other than any Note to be sold by the Initial Purchaser to an Institutional Accredited Investor that is also a Qualified Purchaser, but that is not a QIB, which shall be delivered in fully registered, certificated form in an amount not less than the applicable minimum denomination.
(p) The Company shall apply the net proceeds from the sale of the Notes as set forth in the Final Memorandum under the heading “Use of Proceeds”.
(q) So long as any of the Notes are outstanding, the Company or the Trust Depositor, as applicable, will furnish to you the Initial Purchaser, by first-class mail, facsimile, email or such other method of delivery agreed to in writing by the Initial Purchaser, as soon as practicable, : (Ai) all documents distributed, or caused required to be distributed, by the Servicer distributed to the NoteholdersHolders of Notes; (ii) annual statements of compliance, annual independent certified public accountants’ reports (Bso long as the Initial Purchaser has executed an acknowledgment letter in favor of such accountants) all documents filed, and annual opinions of counsel furnished to the Trustee or caused to be filed, by the Company with the Commission Owner Trustee pursuant to the Exchange ActTransaction Documents, any order of following the Commission thereunder date as such statements, reports and opinions are furnished to the Trustee or pursuant to a "no-action" letter from the staff of Owner Trustee, as the Commission case may be and (Ciii) from time to time, such other information in the possession of the Company concerning the Company, the Trust and any other information concerning Depositor, the Company filed with any governmental Trust, the Notes or regulatory authority which is otherwise publicly available the Certificate as you the Initial Purchaser may reasonably request.
(a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xiir) The Company will file with extend to all prospective investors the Commission as part of a current report on Form 8-K each ABS Term Sheet provided opportunity to ask questions of, and receive answers from, the Company by each concerning the Notes and the terms and conditions of the Underwriters offering thereof and identified by each of them to obtain such information as such (i) no later than prospective investors may consider necessary in making an informed investment decision or to verify the date that accuracy of the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted information set forth in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the CompanyMemoranda, to the effect that such accountants have performed certain specified proceduresextent the Company possesses the same or can acquire it without unreasonable effort or expense, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined provided that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereofbe under no obligation to divulge information that is proprietary or confidential.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 2 contracts
Samples: Note Purchase Agreement (Horizon Technology Finance Corp), Note Purchase Agreement (Hercules Technology Growth Capital Inc)
Certain Agreements of the Company. The Company agrees with the Underwriters that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iii) The Company will advise the Representative promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, and will not effect such amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating to the Notes is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(vii) The Company will furnish to each Underwriter copies of the Registration Statement, the Prospectus and any preliminary Prospectus Supplement related thereto and all amendments and supplements to such documents, in each case as soon as available and in such quantities as each Underwriter may reasonably request.
(viii) The Company will cooperate with each Underwriter in arranging for the qualification of the Notes for sale and the determination of their eligibility for investment under the laws of such jurisdictions as each Underwriter designates and will continue such qualifications in effect so long as required for the distribution of the Notes; provided, however, that the Company shall not be obligated to qualify to do business in any jurisdiction in which it is not currently so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purpose.
(ix) For a period from the date of this Agreement until the retirement of the Notes, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably request.
(a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each of the Underwriters and identified by each of them as such (i) no later than within the date that the Prospectus Supplement is filed with respect time period allotted for such filing pursuant to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters)Letter; provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLPPricewaterhouseCoopers, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP PricewaterhouseCoopers have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP Andrews & Kurth L.L.P. to deliver to the Underwriters on or before the Prefunding bexxxx xxe Pxxxxxding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP Andrews & Kurth L.L.P. on the Closing Date with respect to the Funded ContractsXxxxxx Coxxxxxts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 2 contracts
Samples: Underwriting Agreement (Onyx Acceptance Financial Corp), Underwriting Agreement (Onyx Acceptance Financial Corp)
Certain Agreements of the Company. The Company agrees with the Underwriters Purchaser that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative CSFBC promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement without the RepresentativeCSFBC's consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Purchaser, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify CSFBC of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither CSFBC's consent to, nor its delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vib) As soon as practicable, the The Company will cause the Trust to furnish or make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(vii) The Company will furnish to each Underwriter Purchaser copies of the Registration StatementOffering Document and Exchange Act Reports, the Prospectus and any preliminary Prospectus Supplement related thereto and all upon request of the Representative amendments and supplements to such documents, in each case as soon as available and in such quantities as each Underwriter may CSFBC reasonably requestrequests. The Company will pay the expenses of printing and distributing to the Purchaser all such documents.
(viiic) The Company will cooperate with each Underwriter the Purchaser in arranging for connection with the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as each Underwriter CSFBC designates and will continue such qualifications in effect so long as required for the distribution resale of the NotesOffered Securities; provided, however, that the Company shall not be obligated required in connection therewith to qualify to do business as a foreign corporation in any jurisdiction in which it is not currently now so qualified or to take any action which that would subject it to general or unlimited consent to service of process or taxation other than as to matters and transactions taken by Company as contemplated herein that relates to the Offering Document, or the offering of the Offered Securities in any jurisdiction where in which it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposequalified.
(ixd) For During the period of two years hereafter, the Company will furnish or make generally available to the Purchaser as soon as practicable after the end of each fiscal year, a period from the date copy of this Agreement until the retirement its annual report to stockholders, if any, for such year, and a copy of the Notes, restrictions on transfer applicable to the Offered Securities; and the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, Purchaser as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any available, a copy of the Notes are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust each report and any other information concerning definitive proxy statement of the Company filed with any governmental the Commission under the Exchange Act or regulatory authority which is otherwise publicly available as you may reasonably requestmailed to stockholders.
(ae) On The Company will pay all expenses incident to the performance of its obligations under this Agreement and the Registration Rights Agreement, for any filing fees and other expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities for sale under the laws of such jurisdictions as CSFBC designates and the printing of memoranda relating thereto, for any travel expenses of the Company's officers and employees and any other expenses of the Company in connection with attending or before hosting meetings with prospective purchasers of the Offered Securities and for expenses incurred in distributing the Offering Document (including any amendments and supplements thereto) to the Purchaser.
(f) The Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Securities Act relating to debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of CSFBC for a period beginning at the date of this Agreement and ending at the later of the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer lifting of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted trading restrictions by the Indenture and the Trust AgreementPurchaser.
(bg) On or before During the related Prefunding period of two years after the Closing Date, the Company shall cause will not, and will not permit any of its computer records for affiliates (as defined in Rule 144 under the related Prefunded Contracts to be marked to show the Trust's absolute ownership Securities Act) to, resell any of the related Prefunded Contracts and shall cause Offered Securities that have been reacquired by any of them.
(h) During the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and two years after the related Prefunding Closing Date, the Company shall notwill not be or become, and shall instruct an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust AgreementInvestment Company Act.
(xiii) The Company will file In connection with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to offering, until CSFBC shall have notified the Company by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each completion of the Underwriters must comply with their obligations pursuant to Section 4 and resale of the Offered Securities, neither the Company must receive nor any of its affiliates has or will, 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 letter from Xxxxx Xxxxxxxx LLPbeneficial interest any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it nor any of its affiliates will make bids or purchases for the purpose of creating actual, certified public accountantsor apparent, satisfactory in form and substance to active trading in, or of raising the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Dateprice of, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsOffered Securities.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 2 contracts
Samples: Purchase Agreement (El Paso Corp/De), Purchase Agreement (El Paso Natural Gas Co)
Certain Agreements of the Company. The Company agrees and each of the Guarantors, jointly and severally, agree with the Underwriters Initial Purchasers that:
(ia) Immediately following During such period as, in the execution opinion of this AgreementXxxxxx & Xxxxxxx, an Offering Document is required by law to be delivered in connection with Exempt Resales by the Initial Purchasers and in connection with market-making activities of the Initial Purchasers for so long as any Offered Securities are outstanding, the Company will prepare a Prospectus Supplement setting forth and each of the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company Guarantors will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iii) The Company will advise the Representative CSFBC promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the RepresentativeCSFBC's consent, consent (which consent will shall not be unreasonably be withheld). The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Act, resale of the Offered Securities by the Initial Purchasers any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any such time to amend or supplement the Prospectus Offering Document to comply with the Actany applicable law, the Company and each of the Guarantors promptly will prepare notify CSFBC of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission or an effect such compliance. Neither CSFBC's consent to, nor the Initial Purchasers' delivery to offerees or investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter CSFBC copies of the Registration Statement, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as CSFBC requests. Subject to the Initial Purchasers' compliance with its representations and warranties and agreements set forth in Section 4 hereof, the Company and the Guarantors consent to the use of the Offering Document, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchasers in connection with Exempt Resales. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to CSFBC (and, upon request, to each Underwriter may reasonably requestof the other Initial Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Initial Purchasers all such documents.
(viiic) The Company and each of the Guarantors will cooperate with each Underwriter in arranging use its best efforts to arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States as each Underwriter CSFBC reasonably designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; provided, however, Offered Securities by the Initial Purchasers provided that neither the Company shall not nor any of the Guarantors will be obligated required to qualify as a foreign corporation or otherwise subject itself to do business taxation in any jurisdiction state in which it is not currently otherwise so qualified or subject, nor shall any of them be required to take any action which would subject it file a general consent to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposestate.
(ixd) For a During the period from of ten years hereafter (or until the date of this Agreement until the retirement payment in full of the NotesOffered Securities, if earlier), the Company and each of the Guarantors will furnish to the Underwriters copies CSFBC and, upon request, to each of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, other Initial Purchasers as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such statements year; and reports are furnished to the Indenture Trustee Company and Owner Trustee respectively.
(x) So long as any each of the Notes are outstanding, the Company Guarantors will furnish to you CSFBC and, upon request, to each of the other Initial Purchasers (i) as soon as practicableavailable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by a copy of each report and any definitive proxy statement of the Company with and the Commission pursuant Guarantors mailed to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission stockholders and (Cii) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with or any governmental or regulatory authority which is otherwise publicly available of the Guarantors as you CSFBC may reasonably request.
(ae) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts will, upon request, furnish to be marked to show the Trust's absolute ownership CSFBC, each of the related Prefunded Contracts other Initial Purchasers and shall cause any holder of Offered Securities a copy of the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Offered Securities.
(f) During the period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and two years after the related Prefunding Closing Date, the Company shall and each of the Guarantors will not, and shall instruct will not permit any of its affiliates (as defined in Rule 144 under the Servicer not Securities Act) to, take resell any of the Offered Securities that have been reacquired by any of them.
(g) During the period of two years after the Closing Date, the Company and each of the Guarantors will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(h) The Company and each of the Guarantors, jointly and severally, agree to pay all expenses incidental to the performance of their obligations under this Agreement, the Indenture and the Registration Rights Agreement including (i) the fees and expenses of the Trustee and its professional advisors; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Securities, the preparation and printing of this Agreement, the Registration Rights Agreement, the Offered Securities, the Indenture, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and as applicable the Exchange Securities; (iii) the cost of qualifying the Offered Securities for trading in The PortalSM Market ("PORTAL") of The Nasdaq National Market Inc. and any expenses incidental thereto, (iv) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities; (v) for any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities or the Exchange Securities for sale under the laws of such jurisdictions in the United States as CSFBC designates and the printing of memoranda relating thereto; (vi) for any fees charged by investment rating agencies for the rating of the Securities or the Exchange Securities; and (vii) for expenses incurred in distributing the Offering Document (including any amendments and supplements thereto) to the Initial Purchasers. The Company and each of the Guarantors will also pay or reimburse the Initial Purchasers for all travel expenses of the Initial Purchasers (to the extent incurred by them) and the Company's officers and employees and any other expenses of the Initial Purchasers and the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities
(i) In connection with the offering, until CSFBC shall have notified the Company and the other Initial Purchasers of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it 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 Offered Securities.
(j) For a period of 180 days after the date of the initial offering of the Offered Securities by the Initial Purchasers, the Company and each of the Guarantors, without the prior written consent of CSFBC, will not offer, sell, contract to sell, pledge, or otherwise dispose of, directly or indirectly, any United States dollar-denominated debt securities issued or guaranteed by the Company or any Guarantor and having a maturity of more than one year from the date of issue. Neither the Company nor any Guarantor will at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the offer and sale of the Offered Securities.
(k) The Company and each of the Guarantors will apply the net proceeds from the sale of the Offered Securities to be sold by it hereunder substantially in accordance with the description set forth in the Offering Document under the caption "Use of Proceeds."
(l) Except as stated in this Agreement and in the Offering Document, neither the Company, any of the Guarantors nor any of their respective affiliates have taken, nor will any of them take, directly or indirectly, any action inconsistent with designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the Trust's ownership price of such Prefunded Contracts, other than any security of the Company or any of the Guarantors to facilitate the sale or resale of the Offered Securities. Except as permitted by the Indenture Securities Act, the Company and each of the Trust AgreementGuarantors will not distribute any offering material in connection with resales of the Offered Securities.
(xiim) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by and each of the Underwriters Guarantors will use their best efforts to permit the Offered Securities to be designated PORTAL securities in accordance with the rules and identified regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in PORTAL and to permit the Offered Securities to be eligible for clearance and settlement through DTC.
(n) The Company and the Guarantors have complied and will comply with all provisions of Florida Statutes Section 517.075 relating to issuers doing business with Cuba.
(o) The Company and the Guarantors agree not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act), that would be integrated with the sale of the Offered Securities in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the resale of the Offered Securities.
(p) The Company and each of them the Guarantors agree to comply with all the terms and conditions of the Registration Rights Agreement and all agreements set forth in the representation letters of the Company and each of the Guarantors to DTC relating to the approval of the Offered Securities by DTC for "book entry" transfer.
(q) The Company and each of the Guarantors agree that prior to any registration of the Offered Securities pursuant to the Registration Rights Agreement, or at such earlier time as may be required, the Indenture shall be qualified under the 1939 Act and any necessary supplemental indentures will be entered into in connection therewith.
(r) The Company and each of the Guarantors will not voluntarily claim, and will resist actively all attempts to claim, the benefit of any usury laws against holders of the Offered Securities.
(s) For so long as any of the Offered Securities are outstanding and if, in the reasonable judgment of the Initial Purchasers or Xxxxxx & Xxxxxxx, the Initial Purchasers or any of their affiliates (as defined in the rules and regulations under the Securities Act) are required to deliver a prospectus (any such prospectus, a "Market Making Prospectus") in connection with sales of the Offered Securities, to (i) no later than provide the date that Initial Purchasers and their affiliates, without charge, as many copies of the Market Making Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or they may reasonably request, (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in periodically amend the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 Offering Document and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined Exchange Offer Registration Statement so that the information included in such ABS Term Sheet (if any), provided by contained therein complies with the Underwriters to the Company for filing on a current report on Form 8-K pursuant to requirements of Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j10(a) of the Servicing AgreementSecurities Act, addressed (iii) amend the Exchange Offer Registration Statement or amend or supplement the Market Making Prospectus when necessary to reflect any material changes in the Underwritersinformation provided therein and promptly file such amendment or supplement with the Commission, (iv) provide the Initial Purchasers and their affiliates with copies of each amendment or supplement so filed and such other documents, including opinions of counsel and "comfort" letters, as they may reasonably request and (v) indemnify the Initial Purchasers and their affiliates with respect to the transfer Market Making Prospectus and, if applicable, contribute to any amount paid or payable by the Initial Purchasers and their affiliates in a manner substantially identical to that specified in Section 7 hereof (with appropriate modifications). The Company and each of the related Prefunded Contracts substantially in Guarantors consent to the form use, subject to the provisions of the opinions delivered Securities Act and the state securities or Blue Sky laws of the jurisdictions in which the Offered Securities are offered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsInitial Purchasers, of each Market Making Prospectus.
(xivt) The Company and each of the Guarantors will deliver do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Underwriters (i) on or before each Prefunding Closing Date, and to satisfy all conditions precedent to the Officer's Certificate and certificate from each secured creditor required Initial Purchasers' obligations hereunder to be furnished pursuant to Section 2.01(j) of purchase the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing AgreementOffered Securities.
Appears in 2 contracts
Samples: Purchase Agreement (Icon Health & Fitness Inc), Purchase Agreement (Icon Health & Fitness Inc)
Certain Agreements of the Company. The Company agrees with the Underwriters that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes Securities covered thereby and the terms thereof not otherwise specified in the Base Basic Prospectus, the price at which such Notes Securities are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the NotesSecurities, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iii) The Company will advise the Representative promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, and will not effect such amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating to the Notes Securities is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments Securityholders of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(vii) The Company will furnish to each Underwriter copies of the Registration Statement, the Prospectus and any preliminary Prospectus Supplement related thereto and all amendments and supplements to such documents, in each case as soon as available and in such quantities as each Underwriter may reasonably request.
(viii) The Company will cooperate with each Underwriter in arranging for the qualification of the Notes Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as each Underwriter designates and will continue such qualifications in effect so long as required for the distribution of the NotesSecurities; provided, however, that the Company shall not be obligated to qualify to do business in any jurisdiction in which it is not currently so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes Securities for sale in any jurisdiction or the initiation or threat of any proceeding for such purpose.
(ix) For a period from the date of this Agreement until the retirement of the NotesSecurities, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes Securities are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the NoteholdersSecurityholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange ActSecurities Act of 1934, as amended, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably request.
(axi) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each of the Underwriters and identified by each of them as such (i) no later than within the date that the Prospectus Supplement is filed with respect time period allotted for such filing pursuant to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters)Letter; provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLPPricewaterhouseCoopers, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP PricewaterhouseCoopers have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi4(b)(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 2 contracts
Samples: Underwriting Agreement (Onyx Acceptance Financial Corp), Underwriting Agreement (Onyx Acceptance Financial Corp)
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Fulbright & Xxxxxxxx L.L.P., counsel for the Underwriters, one signed copy of the registration statement relating to the Registered Securities, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(ia) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, Prospectus with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within not later than the time period prescribed second business day following the execution and will provide evidence satisfactory to delivery of the Representative of such timely filingTerms Agreement.
(iiib) The Company will advise the Representative Representatives promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, and will not effect such amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or for any additional information supplement; and the Company will also advise the Representative Representatives promptly of the filing of any such amendment or supplement to the Registration Statement or the Prospectus and of the issuance institution by the Commission of any stop order suspending the effectiveness proceedings in respect of the Registration Statement or the institution or threat of any proceeding for that purpose, part thereof and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued orderits lifting, if issued.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(vc) If, at any time when a Prospectus prospectus relating to the Notes Securities is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(vii) The Company will furnish to each Underwriter copies of the Registration Statement, the Prospectus and any preliminary Prospectus Supplement related thereto and all amendments and supplements to such documents, in each case as soon as available and in such quantities as each Underwriter may reasonably request.
(viii) The Company will cooperate with each Underwriter in arranging for the qualification of the Notes for sale and the determination of their eligibility for investment under the laws of such jurisdictions as each Underwriter designates and will continue such qualifications in effect so long as required for the distribution of the Notes; provided, however, that the Company shall not be obligated to qualify to do business in any jurisdiction in which it is not currently so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale terms "supplement" and "amendment" as used in any jurisdiction or the initiation or threat of any proceeding for such purpose.
(ix) For a period from the date of this Agreement until the retirement of the Notesshall include, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreementwithout limitation, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, filed by the Company with the Commission pursuant subsequent to the Exchange Actdate of the Prospectus included in the Registration Statement which are deemed to be incorporated by reference in the Prospectus. Neither the Representatives' consent to, nor the Underwriters' delivery of, any order such amendment or supplement shall constitute a waiver of any of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably request.
(a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described conditions set forth in Section 4(vi) as soon as practicable following receipt thereof5.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 2 contracts
Samples: Terms Agreement (Global Marine Inc), Underwriting Agreement (Global Marine Inc)
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iii) The Company will advise the Representative promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, and will not effect such amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(va) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Securities by the Purchasers, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any such time to amend or supplement the Prospectus Offering Document to comply with the Actany applicable law, the Company promptly will prepare notify the Purchasers of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission or an effect such compliance. The Company will advise the Purchasers promptly of any proposal to amend or supplement the Offering Document and will not effect such amendment or supplementation without the Purchasers’ consent. Neither the Purchasers’ consent to, nor the Purchasers’ delivery to offerees or investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter the Purchasers copies of the Registration StatementPreliminary Offering Circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Circular and all amendments and supplements to such documents, in each case as soon as available and in such quantities as each Underwriter may the Purchasers reasonably request. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act and is not exempt from reporting pursuant to Rule 12g3-2(b) under the Exchange Act, the Company will promptly make available to the Purchasers and, upon request of holders and prospective purchasers of the Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Securities. The Company will pay the expenses of printing and distributing to the Purchasers and any such holders or prospective purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in Europe, the United States and Canada as each Underwriter designates the Purchasers reasonably designate and will continue such qualifications in effect so long as required for the distribution resale of the NotesSecurities by the Purchasers, provided that the Company will not be required to qualify as a foreign corporation or to file a general consent to service of process in any such jurisdiction.
(d) During the period of two years after the Closing Date, the Company will, upon request, furnish to the Purchasers and any holder of Securities a copy of the restrictions on transfer applicable to the Securities.
(e) In connection with the offering, until CSFB shall have notified the Company and the other Purchasers of the completion of the resale of the Securities, neither the Company not any of its affiliates has or will, 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 any Securities or attempt to induce any person to purchase any Offered Securities; and neither it 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 Securities. During the period of two years after the Closing Date, the Company will not, and will not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Securities that have been reacquired by any of them, unless pursuant to a registration statement under the Securities Act.
(f) During the period of two years after the Closing Date, the Company will not be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(g) Prior to the Closing Date and for 40 days subsequent to the Closing Date, neither the Company nor any of its subsidiaries will issue any press release or other communication directly or indirectly or hold any press conference with respect to the issue of the Securities, the Company or any of its subsidiaries, the condition, financial or otherwise (except for routine communications in the ordinary course of business and consistent with past practice, including the Company’s disclosure of results at and for the three months ended March 31, 2005 and 2004), or the earnings, business affairs or business prospects of the Company or any of its subsidiaries, without the prior consent of the Purchasers.
(h) The Company agrees to pay all expenses (together with VAT, where applicable) incidental to the performance of its obligations under this Agreement and the Indenture, including, subject to receipt of sufficiently itemized accounts (i) the fees, disbursements and expenses of the Company’s legal advisors; (ii) the fees, disbursements and expenses of the Company’s accountants; (iii) the fees, disbursements and expenses of the Purchasers’ legal advisors, Vxxxxx & Exxxxx RLLP and Bxxxxxx Xxxxx Bejot; (iv) the fees and expenses of the Trustee or any paying agent and their respective professional advisors; (v) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Securities and the Exchange Securities, the preparation and printing of this Agreement, the Securities, the Indenture, the Registration Rights Agreement, the Preliminary Offering Circular and the Offering Circular and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Securities and the Exchange Securities; (vi) the cost of listing the Securities and the Exchange Securities and qualifying the Securities and the Exchange Securities for trading on the Luxembourg Stock Exchange and any expenses incidental thereto, including those of the Luxembourg listing agent; (vii) the cost of qualifying the Securities and the Exchange Securities for trading in The Portalsm Market (“PORTAL”) of the NASDAQ Stock Market, Inc. and any expenses incidental thereto; (viii) the cost of any advertising approved by the Company in connection with the issue of the Securities; (ix) any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Securities for sale under the laws of such jurisdictions in Europe, the United States and Canada as the Purchasers designate and the printing of memoranda relating thereto; (x) any fees charged by investment rating agencies for the rating of the Securities; and (xi) expenses incurred in distributing the Preliminary Offering Circular and the Offering Circular (including any amendments and supplements thereto) to the Purchasers. The Company agrees to pay or reimburse the Purchasers (to the extent incurred by them) for all reasonable travel expenses of the Purchasers and the Company’s officers and employees and any other reasonable expenses of the Purchasers and the Company in connection with attending or hosting meetings with prospective purchasers of the Securities from the Purchasers. If the sale of the Securities provided for herein is not consummated because any condition to the obligations of the Purchasers set forth in Section 7 hereof is not satisfied, because this Agreement is terminated or because of any failure, refusal or inability on the part of the Company to perform all obligations and satisfy all conditions on their part to be performed or satisfied hereunder (other than solely by reason of a default by an Purchaser on its obligations hereunder after all conditions hereunder have been satisfied in accordance herewith), the Company agrees to promptly reimburse the Purchasers upon demand for all reasonable out-of-pocket expenses (including reasonable fees, disbursements and charges of Vxxxxx & Exxxxx R.L.L.P. and Bxxxxxx Xxxxx Bejot, the Purchasers’ legal advisors) that shall have been incurred by the Purchasers in connection with the proposed purchase and sale of the Securities. The Company shall not be liable to the Purchasers for loss of contemplated profits from the transactions covered by this Agreement. Other than as set forth in this Section 5(h) each of the parties hereto shall bear all out-of-pocket costs and expenses incurred by them.
(i) In connection with the offering, until the Purchasers shall have notified the Company of the completion of the resale of the Securities, neither the Company nor any of its affiliates has or will, 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 any Securities or attempt to induce any person to purchase any Securities; and neither they nor any of their affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Securities.
(j) After the date of the initial offering of the Securities by the Purchasers and until the day which is 90 days after the Closing Date, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Securities Act relating to, any debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue, or any options or derivatives in respect of such debt securities, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of the Purchasers; provided that this provision shall not prohibit the filing of any registration statement to comply with the terms of the Registration Rights Agreement, the issuance of the Exchange Securities, borrowings under the credit facilities existing on the date hereof or secured financings of accounts receivables and inventory. The Company will not at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Rule 144A or the safe harbour of Regulation S to cease to be applicable to the offer and sale of the Securities.
(k) The Company will indemnify and hold harmless the Purchasers against any documentary, stamp or similar issuance tax that may be imposed by the United States, Luxembourg or the Republic of France (other than, in the case of France, the fixed registration duty and timbres de dimension), including any interest and penalties, that may be payable by the Purchasers on the creation, issuance and sale of the Securities and on the execution and delivery of this Agreement. All payments to be made by the Company hereunder shall be made without withholding or deduction for or on account of any present or future taxes, duties or governmental charges whatsoever unless the Company is compelled by law to deduct or withhold such taxes, duties or charges. In that event, the Company shall pay such additional amounts as may be necessary in order that the net amounts received after such withholding or deduction shall equal the amounts that would have been received if no withholding or deduction had been made. If such withholding or deduction of tax is due, the Purchasers and the Company shall promptly co-operate in completing any procedural formalities necessary for the Company to avoid such withholding or deduction of tax. The Company will not be required to pay such additional amounts to a Purchaser if the Company is able to demonstrate that the payment of additional amounts could have been made to the Purchaser without a withholding or deduction of tax had that Purchaser complied with its obligations to cooperate with the Company.
(l) The Company will use its reasonable best efforts to have the Securities and the Exchange Securities admitted to trading on the Luxembourg Stock Exchange and will maintain such listing as long as the Securities or the Exchange Securities are outstanding; provided, however, that if the Company can no longer maintain such listing, the Company will use all reasonable commercial efforts to obtain and maintain the listing of the Notes and the Exchange Securities on another recognized stock exchange.
(m) The Company shall take all reasonable action necessary to enable Standard & Poor’s Ratings Services, a division of the McGraw Hill, Inc. (“S&P”), and Mxxxx’x Investors Service Inc. (“Moody’s”) to provide and/or confirm their respective credit ratings of the Securities.
(n) The Company will cooperate with the Purchasers and use its reasonable best endeavours to permit the Securities to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in The Portal Market and to permit the Securities to be eligible for clearance and settlement through DTC, including preparation and filing with DTC of a Letter of Representations signed by the Company.
(o) The Company will not, and will not cause its respective affiliates to, nor will the Company authorize or knowingly permit any person acting on its behalf (excluding the Purchasers, as to whom no agreement is made) to, solicit any offer to buy or sell the Securities by means of any form of general solicitation or general advertising within the meaning of Regulation D under the Securities Act or in any manner involving a public offering within the meaning of Regulation D or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and the Company will not offer, sell, contract to sell or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act or the safe harbour afforded by Regulation D thereunder to cease to be applicable to the offering and sale of the Securities as contemplated by this Agreement and the Offering Circular.
(p) The Company undertakes that, if the provisions of the EU Directive 2003/48/EC dated 3 June 2003 are implemented, it will use its best endeavours to ensure that the Company maintains a paying agent in a European Union member state that will not be obligated to qualify to do business in any jurisdiction in which it is not currently so qualified withhold or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect deduct tax pursuant to the suspension or proposed European Union Directive on the qualification taxation of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposesavings income.
(ix) For a period from the date of this Agreement until the retirement of the Notes, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably request.
(a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xiiq) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided use its reasonable best endeavours to the Company do and perform all things required or necessary to be done and performed under this Agreement by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that it prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect and to satisfy all conditions precedent to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) delivery of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing AgreementSecurities.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees and the Guarantors, jointly and severally, agree with the Underwriters Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will promptly advise the Representative promptly Representatives of any proposal to amend or supplement the Registration Statement as filed Preliminary Offering Memorandum, the Final Offering Memorandum, the General Disclosure Package or the Prospectus, any Supplemental Marketing Material and will not effect such amendment or supplement without the Representative's Representatives’ consent, which such consent will not to be unreasonably be withheld. The Company will also advise the Representative promptly of any request timely file all reports required to be filed by the Commission for any amendment of or supplement Company pursuant to the Registration Statement or the Prospectus or for any additional information Section 13(a), 13(c) and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and 15(d) of the issuance Exchange Act for so long as deliveries of an offering memorandum are being made by the Commission of any stop order suspending Purchasers in connection with the effectiveness offering or sale of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) Securities. If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Securities by the Purchasers, any there occurs an event occurs or development as a result of which any document included in the Prospectus as then amended Preliminary Offering Memorandum or supplemented the Final Offering Memorandum, the General Disclosure Package or any Supplemental Marketing Material, if republished immediately following such event or development, included or would include an untrue statement of a material fact or omitted or would 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, not misleading, or if it is otherwise necessary at any time to amend the Prospectus or supplement any such document in order to comply with the Actapplicable law, the Company promptly will notify the Representatives of such event and promptly will prepare and file with the Commission (subject furnish, at its own expense, to the Representative's prior review pursuant Purchasers and the dealers and to paragraph (ii) any other dealers at the request of this Section 5) the Representatives, an amendment or supplement which will correct such statement or omission omission, or an so that such document will comply with applicable law. Neither the Representatives’ consent to, nor the Purchasers’ delivery to offerees or investors of, any such amendment or supplement which will effect shall constitute a waiver of any of the conditions set forth in Section 6. The third sentence of this subsection does not apply to statements in or omissions from any document in the Preliminary Offering Memorandum or the Final Offering Memorandum, the General Disclosure Package or any Supplemental Marketing Material made in reliance upon and in conformity with written information furnished to the Company by the Purchasers specifically for use therein, it being understood and agreed that the only such complianceinformation is that described as such in Section 8(b) hereof.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter the Representatives copies of the Registration StatementPreliminary Offering Memorandum, each other document comprising a part of the General Disclosure Package, the Prospectus and any preliminary Prospectus Supplement related thereto and Final Offering Memorandum, all amendments and supplements to such documentsdocuments and each item of Supplemental Marketing Material, in each case as soon as available and in such quantities as each Underwriter may the Representatives reasonably request. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to the Representatives and, upon request, to each of the other Purchasers and, upon request of holders and prospective purchasers of the Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter designates the Representatives designate and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedSecurities by the Purchasers, however, provided that the Company shall will not be obligated required to qualify as a foreign limited partnership or to do business file a general consent to service of process in any such jurisdiction in which it is not currently so qualified or to take any action which that would subject it itself to general taxation based on income or unlimited service of process revenues in any such jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect currently subject to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposetaxation.
(ixd) For a During the period from of one year after the date of this Agreement until the retirement of the NotesClosing Date, the Company will furnish to the Underwriters copies Representatives and, upon request, to each of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreementother Purchasers, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any end of each fiscal year, a copy of the Notes are outstanding, Company’s annual report for such year; and the Company will furnish to you the Representatives and, upon request, to each of the other Purchasers as soon as practicableavailable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by a copy of each report and any definitive proxy statement of the Company and of any Guarantor that is a reporting company filed with the Commission pursuant under the Exchange Act or mailed to unitholders. However, so long as the Company timely files reports with the Commission on its Electronic Data Gathering, Analysis and Retrieval system as if the Company were subject to the reporting requirements of either Section 13 or Section 15(d) of the Exchange Act, any order of it is not required to furnish such reports or statements to the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably requestPurchasers.
(ae) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and one year after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for will, upon reasonable request, furnish to the related Prefunded Contracts to be marked to show the Trust's absolute ownership Representatives, each of the related Prefunded Contracts other Purchasers and shall cause any holder of Securities a copy of the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Securities.
(f) During the period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and one year after the related Prefunding Closing Date, the Company shall will not, and shall instruct the Servicer will not permit any of its Affiliates to, take resell any action inconsistent of the Securities that have been reacquired by any of them. Neither the Company nor any Affiliate will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would be integrated with the Trust's ownership sale of the Securities in a manner that would require the registration under the Securities Act of (i) the sale of the Securities by the Company and the Guarantors to the Purchasers, (ii) the resale of the Securities by the Purchasers to any subsequent purchasers or (iii) the resale of the Securities by such Prefunded Contractssubsequent purchasers to others.
(g) None of the Company, the Guarantors, or their respective Affiliates, or any person acting on their behalf (other than any Purchaser, as permitted by to whom the Company and the Guarantors make no representations) will engage in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) in connection with any offer or sale of the Securities in the United States or in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act or engage in any directed selling efforts (as that term is defined in Regulation S) in the United States with respect to the Securities, and the Company, the Guarantors and their respective Affiliates and each person acting on its or their behalf (other than the Purchasers) will comply with the offering restrictions requirement of Regulation S.
(h) The Company will cooperate with the Purchasers and use its best efforts to permit the Securities to be eligible for clearance and settlement through DTC, Euroclear and Clearstream, Luxembourg.
(i) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay all expenses incidental to the performance of its obligations under this Agreement, the Indenture and the Trust Registration Rights Agreement.
(xii) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each of the Underwriters and identified by each of them as such , including but not limited to: (i) no later than the date that fees and expenses of the Prospectus Supplement Trustee and any transfer agent, registrar or depositary and their professional advisers for which the Company is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or responsible; (ii) no later than two days following their date all expenses in connection with the execution, issue, authentication, packaging and initial delivery of first use the Securities, including any withholding, stamp, transfer or other similar taxes in connection with respect the original issuance and sale of Securities, the preparation and printing of this Agreement, the Securities, the Indenture, the Registration Rights Agreement, the Preliminary Offering Memorandum, any other documents comprising any part of the General Disclosure Package, the Final Offering Memorandum, all amendments and supplements thereto, each item of Supplemental Marketing Material and any other document relating to "collateral term sheets" (as such term is interpreted in the No-Action Letters); providedissuance, howeveroffer, that prior to such filing sale and delivery of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by Securities, including the fees, disbursements and expenses of the Company’s counsel, each of the Underwriters must comply with their obligations pursuant to Section 4 Company’s accountants and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance any other advisors to the Company, to ; (iii) the effect that such accountants have performed certain specified procedures, all cost of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed any advertising approved by the Company to be material. The Company shall file in connection with the issue of the Securities; (iv) any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
expenses (xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver including reasonable fees and disbursements of counsel to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(jPurchasers) incurred in connection with qualification of the Servicing Agreement, addressed to Securities for sale under the Underwriters, with respect to the transfer laws of the related Prefunded Contracts substantially such jurisdictions in the form United States and Canada as the Representatives designate and the preparation and printing of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.memoranda relating thereto;
Appears in 1 contract
Samples: Purchase Agreement (Cheniere Energy Partners, L.P.)
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative Representatives promptly of any proposal to amend or supplement the Registration Statement as filed Preliminary or the Prospectus, Final Offering Circular and will not effect such amendment or supplement supplementation without the Representative's Representatives’ consent, which consent will shall not be unreasonably be withheldwithheld or delayed. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actinitial resale of the Offered Securities by the Purchasers, any there occurs an event occurs or development as a result of which any document included in the Prospectus as then amended Preliminary or supplemented Final Offering Circular, the General Disclosure Package or any Supplemental Marketing Material included or would include an untrue statement of a material fact or omitted or would omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madeprevailing at such time, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify the Representatives of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither the Representatives’ consent to, nor the Purchasers’ delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 7.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter the Representatives copies of the Registration StatementPreliminary Offering Circular, each other document comprising a part of the General Disclosure Package, the Prospectus and any preliminary Prospectus Supplement related thereto and Final Offering Circular, all amendments and supplements to such documentsdocuments and each item of Supplemental Marketing Material, in each case as soon as available and in such quantities as each Underwriter may the Representatives reasonably request. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to the Representatives (and, upon request, to each of the other Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter designates the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution initial resale of the Notes; providedOffered Securities by the Purchasers, however, provided that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any jurisdiction where it such state or subject itself to taxation in respect of doing business.
(d) During the period of two years after the Closing Date, the Company will, upon request, furnish to the Representatives, each of the other Purchasers and any holder of Offered Securities a copy of the restrictions on transfer applicable to the Offered Securities.
(e) During the period of two years after the Closing Date, the Company will not, and will not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Offered Securities that have been reacquired by any of them.
(f) During the shorter of (i) the period of two years after the Closing Date and (ii) the period from the Closing Date until the date upon which the transfer restrictions applicable to the Offered Securities shall no longer apply, the Company will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is not now so subject. or is required to be registered under Section 8 of the Investment Company Act.
(g) The Company will promptly advise pay all expenses incidental to the Underwriters performance of its obligations under this Agreement, the Mortgage and the Registration Rights Agreement, including (i) the fees and expenses of the receipt Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Securities, the preparation and printing of this Agreement, the Registration Rights Agreement, the Offered Securities, the Mortgage, the Preliminary Offering Circular, any other documents comprising any part of the General Disclosure Package, the Final Offering Circular, all amendments and supplements thereto, each item of Supplemental Marketing Material and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and as applicable, the Exchange Securities; (iii) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities; (iv) any notification expenses (including reasonable fees and disbursements of counsel for the Purchasers) incurred in connection with respect to the suspension or the qualification of the Notes Offered Securities or the Exchange Securities for sale under the laws of such jurisdictions in the United States and Canada as the Representatives reasonably designate and the printing of memoranda relating thereto; (v) any jurisdiction fees charged by investment rating agencies for the rating of the Offered Securities or the initiation or threat Exchange Securities; and (vi) the expenses incurred in distributing the Preliminary Offering Circular, any other documents comprising any part of the General Disclosure Package, the Final Offering Circular (including any proceeding for such purposeamendments and supplements thereto) and any Supplemental Marketing Material to the Purchasers.
(ixh) For In connection with the offering, until the Representatives shall have notified the Company and the other Purchasers of the completion of the initial resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it 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 Offered Securities.
(i) The Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Securities Act relating to, debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of the Representatives for a period from beginning at the date of this Agreement until the retirement of the Notes, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably request.
(a) On or before ending on the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) . The Company will file with not at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company exemption afforded by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j4(2) of the Servicing Agreement, addressed Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the Underwriters, with respect to the transfer offer and sale of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsOffered Securities.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that:
(ia) Immediately following If the Effective Time of the Initial Registration Statement is prior to the execution and delivery of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit file the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the subparagraph (1) (or, if applicable paragraph and if consented to by CSFBC, subparagraph (4)) of Rule 424(b) within not later than the time period prescribed earlier of (A) the second business day following the execution and will provide evidence satisfactory to delivery of this Agreement or (B) the Representative fifteenth business day after the Effective Date of such timely filingthe Initial Registration Statement.
(iiib) The Company will advise the Representative CSFBC promptly of any proposal to amend or supplement the Registration Statement initial or any additional registration statement as filed or the Prospectusrelated prospectus or the Initial Registration Statement, the Additional Registration Statement (if any) or the Prospectus and will not effect such amendment or supplement supplementation without the RepresentativeCSFBC's consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information ; and the Company will also advise CSFBC promptly of the Representative promptly effectiveness of each Registration Statement (if its Effective Time is subsequent to the execution and delivery of this Agreement) and of any amendment or supplement to the supplementation of a Registration Statement or the Prospectus and of the issuance institution by the Commission of any stop order suspending the effectiveness proceedings in respect of the a Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued orderits lifting, if issued.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(vc) If, at any time when a Prospectus prospectus relating to the Notes Offered Securities is required to be delivered under the ActAct in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will promptly notify CSFBC of such event and will promptly prepare and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance. Neither CSFBC's 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.
(vid) As soon as practicable, but not later than the Availability Date (as defined below), the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust its securityholders an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Effective Date of the Initial Registration Statement (or, if later, the Effective Date of the Additional Registration Statement) which will satisfy the provisions of Section 11(a) of the Act and Rule 158 Act. For the purpose of the Commission promulgated thereunder.
(vii) The Company will furnish to each Underwriter copies preceding sentence, "Availability Date" means the 45th day after the end of the Registration Statementfourth fiscal quarter following the fiscal quarter that includes such Effective Date, except that, if such fourth fiscal quarter is the Prospectus and any preliminary Prospectus Supplement related thereto and all amendments and supplements to such documents, in each case as soon as available and in such quantities as each Underwriter may reasonably request.
(viii) The Company will cooperate with each Underwriter in arranging for the qualification last quarter of the Notes for sale and Company's fiscal year, "Availability Date" means the determination of their eligibility for investment under 90th day after the laws end of such jurisdictions as each Underwriter designates and will continue such qualifications in effect so long as required for the distribution of the Notes; provided, however, that the Company shall not be obligated to qualify to do business in any jurisdiction in which it is not currently so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposefourth fiscal quarter.
(ix) For a period from the date of this Agreement until the retirement of the Notes, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably request.
(a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). a. The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iii) The Company will advise the Representative CSFBC promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the RepresentativeCSFBC's consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Purchasers, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify CSFBC of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither CSFBC's consent to, nor the Purchasers' delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(vii) b. The Company will furnish to each Underwriter CSFBC copies of the Registration Statementany preliminary offering circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as CSFBC reasonably requests and the Company will furnish to CSFBC on the date hereof three copies of the Offering Document signed by a duly authorized Officer of the Company, one of which will include the independent accountant's report therein manually signed by such independent accountants. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to CSFBC (and, upon request, to each Underwriter may reasonably request.
of the other Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (viiior any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will cooperate with each Underwriter in arranging for pay the qualification expenses of printing and distributing to applicable persons referred to above all such documents.
c. The Company will promptly from time to time take such action as CSFBC may reasonably request to qualify the Notes Offered Securities for sale and the determination of their eligibility for investment under the securities laws of such jurisdictions in the United States and Canada as each Underwriter designates CSFBC may request and will continue to comply with such qualifications laws so as to permit the continuance of sales and dealings therein in effect so such jurisdiction for as long as required for may be necessary to complete the distribution resale of the Notes; providedOffered Securities by the Purchasers, however, provided that the Company shall will not be obligated required to qualify as a foreign corporation, to do business file a general consent to service of process in any jurisdiction in which it is not currently so qualified such state or to take any action which that would subject it to general or unlimited service of process taxation in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposejurisdiction.
(ix) d. For a period from so long as the date of this Agreement until the retirement of the NotesOffered Securities are in global form, the Company will furnish to the Underwriters copies CSFBC and, upon request, to each of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreementother Purchasers, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such statements year; and reports are furnished the Company will furnish to CSFBC and, upon request, to each of the other Purchasers (i) as soon as available, a copy of each report and any definitive proxy statement of the Company filed with the Commission under the Exchange Act or mailed to stockholders and (ii) to furnish to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any holders of the Notes are outstandingOffered Securities all other documents specified in Section 7.04 of the Indenture, all in the manner so specified. For a period of three years following the date of this Agreement, the Company will furnish to you as soon as practicableCSFBC and, (A) all documents distributedupon request, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order each of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) other Purchasers, from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental as CSFBC or regulatory authority which is otherwise publicly available as you such other Purchasers may reasonably request, provided any material nonpublic information received by CSFBC or the other Purchasers will be held in confidence and not used in violation of any applicable law.
(a) On or before e. During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts will, upon request, furnish to be marked to show the Trust's absolute ownership CSFBC, each of the related Prefunded Contracts other Purchasers and shall cause any holder of Offered Securities a copy of the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Offered Securities.
f. During the period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and two years after the related Prefunding Closing Date, the Company shall will not, and shall instruct will not permit any of its affiliates (as defined in Rule 144 under the Servicer not Securities Act) to, take resell any action inconsistent with of the Trust's ownership Offered Securities that have been reacquired by any of such Prefunded Contractsthem.
g. During the period of two years after the Closing Date, other than as permitted by the Company will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
h. The Company will pay or cause to be paid all expenses incidental to the performance of its obligations under this Agreement, the Indenture, the Third Supplemental Indenture and the Trust Agreement.
Registration Rights Agreement (xii) The Company will file with except, in the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each case of the Underwriters Registration Rights Agreement, any underwriting discounts and identified commissions and all other costs and expenses customarily borne by each of them as such security holders), including (i) no later than the date that fees and expenses of the Prospectus Supplement is filed Trustee and its professional advisers in connection with respect to "computational materials" the Indenture, the Third Supplemental Indenture and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or Offered Securities; (ii) no later than two days following their date all expenses in connection with the execution, issue, authentication, packaging and initial delivery of first use with respect to "collateral term sheets" the Offered Securities and, as applicable, the Exchange Securities (as such term is interpreted defined in the No-Action LettersRegistration Rights Agreement), the preparation and printing of this Agreement, the Registration Rights Agreement, the Offered Securities, the Indenture, the Third Supplemental Indenture, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and as applicable, the Exchange Securities; provided(iii) the cost of listing the Offered Securities and qualifying the Offered Securities for trading in The Portal(SM) Market ("PORTAL") and any expenses incidental thereto; (iv) any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities or the Exchange Securities for sale under the laws of such jurisdictions in the United States and Canada as CSFBC designates, including the fees and disbursements of counsel for the Purchasers (not to exceed $5,500 in the aggregate) in connection with such qualification and in connection with the Blue Sky Memorandum; (v) any fees charged by investment rating agencies for the rating of the Securities or the Exchange Securities; (vi) the filing fees incident to, and fees and the disbursements of counsel to the Purchasers in connection with, any required review by the National Association of Securities Dealers, Inc. of the terms of the sale of the Offered Securities and (vii) the expenses incurred in distributing the Offering Document (including any amendments and supplements thereto) to the Purchasers. It is understood, however, that prior to such filing except as provided in this agreement, the Purchasers will pay for their own expenses, including the fees of an ABS Term Sheet (other than their counsel, any ABS Term Sheets that are not based transfer taxes on the Contract Pool information) by the Company, each resale of any of the Underwriters must comply Offered Securities by them, and any advertising expenses connected with their obligations pursuant to Section 4 any offers they may make.
i. In connection with the offering, until CSFBC shall have notified the Company and the Company must receive a letter from Xxxxx Xxxxxxxx LLPother Purchasers of the completion of the resale of the Offered Securities, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to neither the Company nor any of its affiliates has or will, either alone or with one or more other persons, bid for filing on or purchase for any account in which it or any of its affiliates has a current report on Form 8-K pursuant beneficial interest any Offered Securities or attempt to Section 4 andinduce any person to purchase any Offered Securities; and neither it nor any of its affiliates will make bids or purchases for the purpose of creating actual, if or apparent, active trading in, or of raising the Company then so specifiesprice of, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereofOffered Securities.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP j. During the period beginning on the date hereof and continuing to deliver to and including the Underwriters on or before the Prefunding Closing Date, the opinions required Company will not offer, sell, contract to be furnished pursuant sell, pledge or otherwise dispose of, directly or indirectly, any United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue. The Company will not at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 2.01(j4(2) of the Servicing Agreement, addressed Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the Underwriters, with respect to the transfer offer and sale of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsOffered Securities.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Federated Department Stores Inc /De/)
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative CSFB promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the Representative's CSFB’s consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Purchasers, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify CSFB of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither CSFB’s consent to, nor the Purchasers’ delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter CSFB copies of the Registration StatementPreliminary Offering Circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Circular and all amendments and supplements to such documents, in each case as soon as available and in such quantities as CSFB requests. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to CSFB (and, upon request, to each Underwriter may reasonably requestof the other Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter CSFB designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedOffered Securities by the Purchasers, however, provided that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposejurisdiction.
(ixd) For a During the period from of two years after the date of this Agreement until the retirement later of the Notes, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, First Closing Date and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably request.
(a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding last Optional Closing Date, the Company shall cause its computer records for the related Prefunded Contracts will, upon request, furnish to be marked to show the Trust's absolute ownership CSFB, each of the related Prefunded Contracts other Purchasers and shall cause any holder of Offered Securities a copy of the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Offered Securities.
(e) During the period of two years after the later of the related Prefunded Contracts First Closing Date and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding last Optional Closing Date, the Company shall will not, and shall instruct will not permit any of its officers, directors or controlled affiliates (as defined in Rule 144 under the Servicer not Securities Act) to, take resell any action inconsistent with of the Trust's ownership Offered Securities that have been reacquired by any of such Prefunded Contractsthem.
(f) During the period of two years after the later of the First Closing Date and the last Optional Closing Date, other than as permitted by the Company will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(g) The Company will pay all expenses incidental to the performance of its obligations under this Agreement, the Indenture and the Trust Registration Rights Agreement, including (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities, the preparation and printing of this Agreement, the Registration Rights Agreement, the Offered Securities, the Indenture, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities; (iii) the cost of qualifying the Offered Securities for trading in The PortalSM Market (“PORTAL”) and any expenses incidental thereto; (iv) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities; (v) any expenses (including reasonable fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities for sale under the laws of such jurisdictions in the United States and Canada as CSFB designates and the printing of memoranda relating thereto; and (vi) expenses incurred in distributing preliminary offering circulars and the Offering Document (including any amendments and supplements thereto) to the Purchasers.
(xiih) The In connection with the offering, until CSFB shall have notified the Company and the other Purchasers of the completion of the resale of the Offered Securities, neither the Company nor any of its officers, directors or controlled affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities, and neither it nor any of its officers, directors or controlled affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Offered Securities.
(i) For a period of 90 days after the date of the Offering Circular of the Offered Securities by the Purchasers, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to registration statement under the Securities Act relating to, any debt securities issued or guaranteed by the Company by each and having a maturity of more than one year from the date of issue, or any shares of Common Stock of the Underwriters Company or securities convertible into or exchangeable or exercisable for shares of Common Stock of the Company, including the Offered Securities, or warrants or other rights to purchase shares of Common Stock of the Company, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of CSFB and identified by each of them as such Bear, Xxxxxxx & Co. Inc. except (i) no later than the date that filing of the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in shelf registration statement covering resales of the No-Action Letters) Offered Securities or the Common Stock of the Company issuable upon conversion of the Offered Securities, (ii) no later than two days following their date issuances of first use with respect shares of Common Stock of the Company pursuant to "collateral term sheets" (as such term is interpreted the conversion or exchange of convertible or exchangeable securities or the exercise of warrants or options, in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based each case outstanding on the Contract Pool informationdate hereof, (iii) by grants of employee stock options pursuant to the Company, each terms of a plan in effect on the date hereof or (iv) issuances of shares of Common Stock of the Underwriters must comply with their obligations Company pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that exercise of such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be materialoptions. The Company shall file will not at any corrected ABS Term Sheets described in time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j4(2) of the Servicing Agreement, addressed Securities Act to cease to be applicable to the Underwriters, with respect to the transfer offer and sale of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsOffered Securities.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Quanex Corp)
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative CSFBC promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the RepresentativeCSFBC's consent, which consent will shall not be unreasonably be withheldwithheld or delayed. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Purchasers, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any such time to amend or supplement the Prospectus Offering Document to comply with the Actany applicable law, the Company promptly will prepare notify CSFBC of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission or an effect such compliance. Neither CSFBC's consent to, nor the Purchaser's delivery to offerees or investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter CSFBC copies of the Registration Statementany preliminary offering circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as CSFBC requests, and the Company will furnish to CSFBC on the Closing Date three copies of the Offering Document signed on the cover page by a duly authorized officer of the Company, one of which will include the independent accountants' reports therein manually signed by such independent accountants. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to CSFBC (and upon request, to each Underwriter may reasonably requestother Purchaser) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging use its commercially reasonable efforts to arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter CSFBC designates and will continue such qualifications in effect so long as required for the distribution resale of the NotesOffered Securities by the Purchasers; provided, however, that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any such state or jurisdiction where if it is not now otherwise required to be so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect qualified or to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposeso file.
(ixd) For a During the period from of five years after the date of this Agreement until the retirement of the NotesClosing Date, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered CSFBC and, upon request, to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreementeach other Purchaser, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any end of each fiscal year, a copy of the Notes are outstanding, Company's annual report to stockholders for such year; and the Company will furnish to you CSFBC and, upon request, to each other Purchaser (i) as soon as practicableavailable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by a copy of each report and any definitive proxy statement of the Company filed with the Commission pursuant to under the Exchange Act, any order of the Commission thereunder Act or pursuant mailed to a "no-action" letter from the staff of the Commission stockholders and (Cii) from time to time, such other information in the possession of the Company concerning the Trust and any other publicly available information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you CSFBC may reasonably request.
(ae) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts will, upon request, furnish to be marked to show the Trust's absolute ownership CSFBC, each other Purchaser and any holder of Offered Securities a copy of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Offered Securities.
(f) During the period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and two years after the related Prefunding Closing Date, the Company shall will not, and shall instruct will not permit any of its affiliates (as defined in Rule 144 under the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded ContractsSecurities Act, other than as permitted affiliates who purchase Offered Securities from the Purchasers at the Closing Date) to, resell any of the Offered Securities that have been reacquired by the Indenture and the Trust Agreementany of them.
(xiig) During the period of two years after the Closing Date, the Company will not be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act, and the Company is not, or will not be or become, a closed-end investment company required to be registered under the Investment Company Act.
(h) The Company will pay all expenses incidental to the performance of the Company's obligations under this Agreement, including (i) all expenses in connection with the execution, issue, packaging and initial delivery of the Offered Securities, the preparation and printing of the Offered Securities, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities; (ii) the cost of qualifying the Offered Securities for trading in the Private Offerings, Resale and Trading through Automated Linkages (PORTAL) market and any expenses incidental thereto; (iii) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities; (iv) any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities for sale under the laws of such jurisdictions in the United States and Canada as CSFBC designates and the printing of memoranda relating thereto; and (v) all expenses incurred in distributing preliminary offering circulars and the Offering Document (including any amendments and supplements thereto) to the Purchasers. The Company will also pay or reimburse the Purchasers (to the extent incurred by it) for all travel expenses of the Company's officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities from the Purchasers.
(i) In connection with the offering, until CSFBC shall have notified the Company and the other Purchasers of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or will, either alone or with one or more other persons, bid for or purchased for any account in which it or any of its affiliates has a beneficial interest any Offered Securities or attempted to induce any person to purchase any Offered Securities; and neither it 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 Offered Securities.
(j) For a period of 90 days after the date hereof, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission as part a registration statement under the Securities Act covering the sale by the Company of, (a) any preferred stock or any other securities of a current report on Form 8-K each ABS Term Sheet provided the Company which are substantially similar to the Company by each Exchangeable Preferred Stock, (b) any debentures of the Underwriters and identified by each Company or any other securities of them as the Company which are substantially similar to the Exchange Debentures, or (c) any other securities which are convertible into, or exercisable or exchangeable for, preferred stock or such substantially similar securities of the Company, or debentures or such substantially similar securities of the Company, without the prior written consent of CSFBC, except the offer, sale, contract to sell, or other disposition of (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or Exchangeable Preferred Stock, (ii) no later than two days following their the Exchange Debentures issued or delivered upon exchange of the Exchangeable Preferred Stock, (iii) securities issued or delivered upon conversion, exchange or exercise of any other securities of the Company outstanding on the date of first use with respect to "collateral term sheets" the Offering Document, (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool informationiv) by the Company, each capital stock and options of the Underwriters must comply with their obligations Company issued pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLPbenefit or incentive plans maintained for its officers, certified public accountantsdirectors, satisfactory in form and substance employees or persons providing services to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.,
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative CSFBC promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation (other than a required filing of a report under the Exchange Act) without the RepresentativeCSFBC's consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Purchasers, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify CSFBC of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither CSFBC's consent to, nor the Purchasers' delivery to offerees or an investors of, any such amendment or supplement which shall constitute a waiver of any of the conditions set forth in Section 6. CSFBC will effect such compliancenotify the Company when its distribution is complete.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter the Purchasers copies of the Registration Statement, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as CSFBC reasonably requests, and the Company will furnish to CSFBC on the date hereof three copies of the Offering Document signed by a duly authorized officer of the Company. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to CSFBC (and, upon request, to each Underwriter may reasonably requestof the other Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter the Purchasers and their counsel in arranging for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter CSFBC designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedOffered Securities by the Purchasers, however, provided that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposejurisdiction.
(ixd) For a During the period from the date of this Agreement until the retirement of the Notesfive years hereafter, the Company will furnish to the Underwriters copies CSFBC (and, upon request, to each of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, other Purchasers) as soon as practicable after the end of each fiscal year, a copy of its annual report to shareholders for such statements year; and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you CSFBC (and, upon request, to each of the other Purchasers) (i) as soon as practicableavailable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by a copy of each report and any definitive proxy statement of the Company filed with the Commission pursuant to under the Exchange ActAct or mailed to shareholders, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (Cii) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you CSFBC may reasonably request.
(ae) On or before During the period of two years after the Closing Date Date, the Company shall cause its computer records relating will, upon request, furnish to CSFBC, each of the other Purchasers and any holder of Offered Securities a copy of the restrictions on transfer applicable to the Funded Contracts to be marked to show Offered Securities.
(f) During the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date the Company shall will not, and shall instruct will not permit any of its affiliates (as defined in Rule 144 under the Servicer not Securities Act) to, take resell any action inconsistent with of the Trust's ownership Offered Securities that have been reacquired by any of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreementthem.
(bg) On or before During the related Prefunding period of two years after the Closing Date, the Company shall cause will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(h) The Company will pay all expenses incidental to the performance of its computer records obligations under this Agreement and the Indenture, including (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities, the printing of this Agreement, the Offered Securities and the Indenture, and the preparation and printing of the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities ; (iii) the cost of qualifying the Offered Securities for trading in The Portal(SM) Market ("PORTAL") and any expenses incidental thereto; (iv) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities; (v) any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities for sale under the laws of such jurisdictions in the United States and Canada as CSFBC designates and the printing of memoranda relating thereto; (vi) any fees charged by investment rating agencies for the related Prefunded Contracts to be marked to show the Trust's absolute ownership rating of the related Prefunded Contracts Offered Securities in the event such a rating is requested by the Company; provided, that the Company agrees that in no event will the Purchasers be obligated to pay any such rating agency fees; and (vii) expenses incurred in distributing the Offering Document (including any amendments and supplements thereto) to the Purchasers.
(i) In connection with the Offering, until CSFBC shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to have notified the Company of the related Prefunded Contracts and the subsequent transfer completion of the related Prefunded Contracts resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it nor any of its affiliates will make bids or purchases for the Trustpurpose of creating actual, and after or apparent, active trading in, or of raising the related Prefunding Closing Dateprice of, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust AgreementOffered Securities.
(xiij) The Company will not offer, sell, contract to sell, announce its intention to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided registration statement under the Securities Act relating to (other than pursuant to the Company by each of the Underwriters and identified by each of them as such Registration Rights Agreement), (i) no later any shares of its GGD Stock, or securities (other than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" GTR Stock, GMO Stock or GGD Debentures (as such terms are interpreted defined in the No-Action LettersOffering Circular) into which outstanding GMO Notes (as defined in the Offering Circular) are exchanged in accordance with their terms) convertible into or exchangeable or exercisable for any shares of GGD Stock, other than pursuant to employee and director benefit plans or upon the exercise of outstanding warrants or conversion of the Notes or the GGD Debentures or (ii) no later any Notes or other United States dollar-denominated debt securities (other than two days following GGD Debentures into which outstanding GMO Notes are exchanged in accordance with their terms), issued or guaranteed by the Company and having a maturity of more than one year from the date of first use with respect to "collateral term sheets" (as such term is interpreted in issue without the No-Action Letters)prior written consent of CSFBC for a period of 90 days after the date of the Offering Document; provided, however, provided that prior to the expiration of such filing of an ABS Term Sheet (other than 90-day period, the Company may engage in any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply foregoing activities in connection with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLPan acquisition using GGD Stock or securities convertible into or exchangeable or exercisable for GGD Stock, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined provided that the information included in terms of any such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are acquisition shall not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.provide
Appears in 1 contract
Samples: Purchase Agreement (Genzyme Corp)
Certain Agreements of the Company. The Company agrees with the Underwriters Initial Purchaser that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative Initial Purchaser promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Memorandum and will not effect such amendment or supplement supplementation without the RepresentativeInitial Purchaser's consent, which consent will not be unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the completion of the resale of the Notes is required to be delivered under by the Act, Initial Purchaser any event occurs as a result of which the Prospectus Offering Memorandum as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify the Initial Purchaser of each event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither the Initial Purchaser's consent to, nor the Initial Purchaser's delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vib) As soon as practicableNotwithstanding any provision of paragraph (a) to the contrary, the Company will cause Company's obligations under paragraph (a) shall terminate on the Trust earlier to make generally available occur of (i) the effective date of an exchange offer registration statement or shelf registration statement with respect to the Noteholders Notes filed pursuant to the Registration Rights Agreement and (ii) the holders date upon which the Initial Purchaser and its affiliates cease to hold Notes acquired as part of their initial distributions, provided that the Residual Interest Instruments costs and expenses of the Trust an earnings statement or statements of the Trust covering a period of performing such obligations at least 12 months beginning any time after one year from the Closing Date which will satisfy shall be paid by the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunderInitial Purchaser.
(viic) The Company will furnish to each Underwriter the Initial Purchaser copies of the Registration Statement, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Memorandum and all amendments and supplements to such documentsthereto, in each case as soon as available and in such quantities as each Underwriter may the Initial Purchaser reasonably requestrequests. So long as any of the Notes are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, at any time when the Company is not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the Company will provide to any holder of such restricted securities, or to any prospective purchaser of such restricted securities designated by a holder, upon the request of such holder or prospective purchaser, any information required to be delivered to holders and prospective purchasers of the Notes pursuant to Rule 144A(d)(4) under the Securities Act. This covenant is intended to be for the benefit of the holders, and prospective purchasers designated by such holders, from time to time of such restricted securities.
(viiid) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes for sale and the determination of their eligibility for investment under the applicable securities or "blue sky" laws of such jurisdictions in the United States as each Underwriter the Initial Purchaser reasonably designates and will continue such qualifications in effect so long as required for the distribution resale of the NotesNotes by the Initial Purchaser; provided, however, provided that the Company shall will not be obligated required to (i) qualify as a foreign corporation or as a dealer in securities, (ii) file a general consent to do business in any jurisdiction in which it is not currently so qualified or to take any action which would subject it to general or unlimited service of process or (iii) subject itself to taxation in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposestate.
(ixe) For a During the period from the date of this Agreement until the retirement of the Notesfive years hereafter, the Company will promptly furnish to the Underwriters copies Initial Purchaser upon request, a copy of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "noits Annual Report on Form 10-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust K and any other information concerning definitive proxy statement of the Company filed with any governmental the Commission under the Exchange Act or regulatory authority which is otherwise publicly available as you may reasonably requestmailed to stockholders.
(af) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and three years after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for will, upon request, furnish to the related Prefunded Contracts to be marked to show the Trust's absolute ownership Initial Purchaser and any holder of Notes a copy of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Notes.
(g) During the period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and three years after the related Prefunding Closing Date, the Company shall will not, and shall instruct will not permit any of its affiliates (as defined in Rule 144 under the Servicer not Securities Act) to, take resell any action inconsistent of the Notes that have been reacquired by any of them.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement, including (i) the preparation, printing and distribution of the Offering Memorandum and any amendments thereof or supplements thereto,
(ii) the preparation, printing and distribution of this Agree- ment, the Registration Rights Agreement, the Notes and any Blue Sky Memorandum or Legal Investment Survey by the Initial Purchaser's counsel, (iii) the delivery of the Notes, (iv) the reasonable fees and disbursements of the counsel and accountants for the Company, (v) the expenses of qualifying the Notes under state securities laws in accordance with the Trustprovisions of paragraph (d) of this Section, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchaser in connection therewith, (vi) the fees and expenses of the Trustee and the reasonable fees and disbursements of its counsel, (vii) any fees charged by rating agencies for rating the Notes, (viii) any fees of the National Association of Securities Dealers, Inc. with respect to admitting the Notes for trading in the PORTAL market, (ix) all reasonable travel, lodging and other expenses of the Initial Purchaser and the Company's ownership officers and employees and any other expenses in connection with attending or hosting meetings with prospective purchasers of such Prefunded Contracts, Notes and (xi) all other than as permitted expenses incurred by the Indenture and Initial Purchaser in connection with the Trust transactions contemplated by this Agreement.
(xiii) The Company will file In connection with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to offering, until the Initial Purchaser shall have notified the Company by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each completion of the Underwriters must comply with their obligations pursuant to Section 4 and resale of the Notes, neither the Company must receive nor any of its affiliates has bid for or purchased or will bid for or purchase, either alone or with one or more other persons, for any account in which it or any of its affiliates has a letter from Xxxxx Xxxxxxxx LLPbeneficial interest any Notes; and neither it nor any of its affiliates will make bids or purchases for the purpose of creating actual, certified public accountantsor apparent, satisfactory in form and substance to active trading in, or of raising the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Dateprice of, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsNotes.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative CSFBC promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the RepresentativeCSFBC's consent, which consent will shall not be unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Purchasers, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify CSFBC of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither CSFBC's consent to, nor the Purchasers' delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter the Purchasers copies of the Registration Statementany preliminary offering circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as each Underwriter may CSFBC reasonably requestrequests. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act and any Offered Securities are outstanding, upon request of holders and prospective purchasers of the Offered Securities the Company will furnish or cause to be furnished, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate endeavor in good faith in cooperation with each Underwriter in arranging the Purchasers to arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter CSFBC designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedOffered Securities by the Purchasers, however, provided that the Company shall will not be obligated required to qualify as a foreign corporation or to do file a general consent to service of process or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not currently so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now otherwise so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purpose.
(ixd) For a During the period from the date of this Agreement until the retirement of the Notesfive years hereafter, the Company will furnish to the Underwriters copies CSFBC and, upon request, to each of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreementother Purchasers, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such statements year; and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you CSFBC and, upon request, to each of the other Purchasers (i) as soon as practicableavailable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by a copy of each report and any definitive proxy statement of the Company filed with the Commission pursuant to under the Exchange Act, any order of the Commission thereunder Act or pursuant mailed to a "no-action" letter from the staff of the Commission stockholders and (Cii) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you CSFBC may reasonably request.
(ae) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date or, if earlier, until such time as the Offered Securities are no longer restricted securities (as defined in Rule 144 under the Securities Act), the Company shall will, upon request, furnish to CSFBC, each of the other Purchasers and any holder of Offered Securities a copy of the restrictions on transfer applicable to the Offered Securities.
(f) During the period of two years after the Closing Date or, if earlier, until such time as the Offered Securities are no longer restricted securities (as defined in Rule 144 under the Securities Act), the Company will not, and shall instruct will use its reasonable efforts to cause its affiliates (as defined in Rule 144 under the Servicer Securities Act) not to, take resell any action inconsistent with of the Trust's ownership Offered Securities that have been reacquired by any of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreementthem.
(bg) On or before During the related Prefunding period of two years after the Closing Date, the Company shall cause its computer records for the related Prefunded Contracts will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be marked to show the Trust's absolute ownership registered under Section 8 of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Investment Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust AgreementAct.
(xiih) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided pay all expenses incidental to the Company by each performance of its obligations under this Agreement, the Underwriters Indenture, the Supplemental Indentures and identified by each of them as such the Registration Rights Agreement, including (i) no later than the date that fees and expenses of the Prospectus Supplement is filed with respect to "computational materials" Trustee and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or its professional advisers; (ii) no later than two days following their date all expenses in connection with the execution, issue, authentication, packaging and initial delivery of first use with respect to "collateral term sheets" the Offered Securities and, as applicable, the Exchange Securities (as such term is interpreted defined in the No-Action LettersRegistration Rights Agreement); provided, howeverthe preparation and printing of this Agreement, that prior the Registration Rights Agreement, the Offered Securities, the Indenture, the Supplemental Indentures, the Offering Document and amendments and supplements thereto, and any other document relating to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Companyissuance, each offer, sale and delivery of the Underwriters must comply with their obligations pursuant to Section 4 Offered Securities and as applicable, the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to Exchange Securities; (iii) the Company, to the effect that such accountants have performed certain specified procedures, all cost of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed any advertising approved by the Company in connection with the issue of the Offered Securities; (iv) any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities or the Exchange Securities for sale under the laws of such jurisdictions in the United States and Canada as CSFBC designates and the printing of memoranda relating thereto; (v) for any fees charged by investment rating agencies for the rating of the Offered Securities or the Exchange Securities; and (vi) for expenses incurred in distributing preliminary offering circulars and the Offering Document (including any amendments and supplements thereto) to be materialthe Purchasers. The Company shall file will also pay or reimburse the Purchasers (to the extent incurred by them) for all travel expenses of the Company's officers and employees and any corrected ABS Term Sheets described other expenses of the Company in Section 4(vi) as soon as practicable following receipt thereofconnection with attending or hosting meetings with prospective purchasers of the Offered Securities from the Purchasers.
(xiiii) In connection with the offering, until CSFBC shall have notified the Company and the other Purchasers of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it 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 Offered Securities.
(j) During the period beginning on the date hereof and continuing to and including the later of the Closing Date or the termination of trading restrictions, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue, without the consent of CSFBC. The Company will not at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to exemption afforded by Section 2.01(j4(2) of the Servicing Agreement, addressed Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the Underwriters, with respect to the transfer offer and sale of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsOffered Securities.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the Underwriters Purchaser that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative Purchaser promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the Representative's Purchaser’s consent, which consent will shall not be unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Purchaser, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any such time to amend or supplement the Prospectus Offering Document to comply with the Actany applicable law, the Company promptly will prepare notify the Purchaser of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission or an effect such compliance. Upon receipt of such notice in written form, the Purchaser agrees to suspend use of the Offering Document until the Company has amended or supplemented the Offering Document to correct such misstatement or omission or to effect compliance with this paragraph (a). Neither the Purchaser’s consent to, nor the Purchaser’s delivery to offerees or investors of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 6. The Company’s and the Purchaser’s obligations under this paragraph (a) shall terminate on the earliest to occur of (i) the effective date of a shelf registration statement with respect to the Offered Securities filed pursuant to the Registration Rights Agreement and (ii) the date upon which will effect such compliancethe Purchaser or any of its affiliates no longer continues to hold Offered Securities acquired as part of their initial distribution.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter the Purchaser copies of the Registration Statement, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documentsdocument, in each case as soon as available and in such quantities as each Underwriter may the Purchaser reasonably requestrequests, and the Company will furnish to the Purchaser on the First Closing Date three copies of the Offering Document signed by a duly authorized officer of the Company. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act and, upon request of holders and prospective purchasers of the Offered Securities, the Company will furnish to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchaser all such documents.
(viiic) The Company will cooperate with each Underwriter the Purchaser and its counsel in arranging for connection with the registration and qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions states in the United States as each Underwriter the Purchaser designates and will do all things necessary to continue such qualifications in effect so long as required for the distribution resale of the Notes; provided, however, Offered Securities by the Purchaser provided that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposestate.
(ixd) For a During the period from of two years after the date of this Agreement until the retirement later of the Notes, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, First Closing Date and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably request.
(a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding last Optional Closing Date, the Company shall cause its computer records for will, upon request, furnish to the related Prefunded Contracts to be marked to show the Trust's absolute ownership Purchaser and any holder of Offered Securities a copy of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Offered Securities.
(e) During the period of two years after the later of the related Prefunded Contracts Closing Date and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding last Optional Closing Date, the Company shall notwill not be or become, and shall instruct an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Servicer not toInvestment Company Act.
(f) The Company will pay all expenses incidental to the performance of its obligations under this Agreement, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Registration Rights Agreement including (i) the fees and expenses of the Trustee, and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities, the preparation and printing of this Agreement, the Registration Rights Agreement, the Offered Securities, the Indenture, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities; (iii) the cost of qualifying the Offered Securities for trading in The PortalSM Market (“PORTAL”) of The Nasdaq Stock Market, Inc. and any expenses incidental thereto, (iv) the cost of any advertising specifically approved by the Company in connection with the issue of the Offered Securities, (v) for any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities for sale under the laws of such jurisdictions as Xxxxxx Brothers Inc. designates and the printing of memoranda relating thereto if applicable, (vi) for any fees charged by investment rating agencies for the rating of the Offered Securities, and (vii) for expenses incurred in distributing the Offering Document (including any amendments and supplements thereto) to the Purchaser. To the extent specifically approved by the Company, the Company will also pay or reimburse the Purchaser (to the extent incurred by it) for all reasonable travel expenses of the Purchaser and any other reasonable expenses of the Purchaser in connection with attendance of meetings with prospective purchasers of the Offered Securities from the Purchaser.
(xiig) In connection with the offering, until the Purchaser shall have notified the Company of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it 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 Offered Securities.
(h) For a period of 90 days after the date of the initial offering of the Offered Securities by the Purchaser, the Company will not offer, sell, contract to sell, pledge, or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to, any United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than three years from the date of issue and shares of Common Stock of the Company or securities convertible into or exchangeable or exercisable for shares of Common Stock of the Company or warrants or other rights to purchase shares of Common Stock of the Company, or publicly disclose the intentions to make any such offer, sale, pledge or disposition, without the prior written consent of Xxxxxx Brothers Inc., except the offer, sale, contract to sell or other disposition of (1) the Offered Securities, (2) securities issued or delivered upon conversion, exchange or exercise of any other securities of the Company outstanding on the date of the Offering Document or (3) capital stock and options of the Company issued pursuant to benefit or incentive plans maintained for its officers, directors, employees or persons providing services to the Company. The Company will not at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act or Regulation S thereunder to cease to be applicable to the offer and sale of the Offered Securities.
(i) The Company will file with arrange for the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each listing of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); providedUnderlying Shares on The Nasdaq Stock Market, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereofInc.’s National Market.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Chippac Inc)
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative CSFBC promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the RepresentativeCSFBC's consent, which consent will shall not be unreasonably be withheldwithheld or delayed. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Purchasers, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify CSFBC of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither CSFBC's consent to, nor the Purchasers' delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter CSFBC copies of the Registration Statementany preliminary offering circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as CSFBC reasonably requests, and the Company will furnish to CSFBC on the date hereof three copies of the Offering Document signed by a duly authorized officer of the Company, one of which will include the independent accountants' reports therein manually signed by such independent accountants. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to CSFBC(and, upon request, to each Underwriter may reasonably requestof the other Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter CSFBC designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedOffered Securities by the Purchasers, however, provided that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension such state or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposeprovince.
(ixd) For a During the period from the date of this Agreement until the retirement of the Notesfive years hereafter, the Company will furnish to the Underwriters copies CSFBC and, upon request, to each of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreementother Purchasers, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such statements year; and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you CSFBC and, upon request, to each of the other Purchasers (i) as soon as practicableavailable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by a copy of each report and any definitive proxy statement of the Company filed with the Commission pursuant to under the Exchange Act, any order of the Commission thereunder Act or pursuant mailed to a "no-action" letter from the staff of the Commission stockholders and (Cii) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you CSFBC may reasonably request.
(ae) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts will, upon request, furnish to be marked to show the Trust's absolute ownership CSFBC, each of the related Prefunded Contracts other Purchasers and shall cause any holder of Offered Securities a copy of the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Offered Securities.
(f) During the period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and two years after the related Prefunding Closing Date, the Company shall will not, and shall instruct will not permit any of its affiliates (as defined in Rule 144 under the Servicer not Securities Act) to, take resell any action inconsistent with of the Trust's ownership Offered Securities that have been reacquired by any of such Prefunded Contractsthem.
(g) During the period of two years after the Closing Date, other than as permitted by the Company will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(h) The Company will pay all expenses incidental to the performance of its obligations under this Agreement, the Indenture and the Trust Registration Rights Agreement, including (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Securities, the preparation and printing of this Agreement, the Registration Rights Agreement, the Offered Securities, the Indenture, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and as applicable, the Exchange Securities; (iii) the cost of qualifying the Offered Securities for trading in The PortalSM Market ("PORTAL") and any expenses incidental thereto; (iv) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities; (v) for any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities or the Exchange Securities for sale under the laws of such jurisdictions in the United States and Canada as CSFBC designates and the printing of memoranda relating thereto; (vi) for any fees charged by investment rating agencies for the rating of the Securities or the Exchange Securities, and (vii) for expenses incurred in distributing preliminary offering circulars and the Offering Document (including any amendments and supplements thereto) to the Purchasers. The Company will also pay or reimburse the Purchasers (to the extent incurred by them) for all reasonable travel expenses of the Purchasers and the Company's officers and employees and any other reasonable expenses of the Purchasers and the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities from the Purchasers.
(xiii) In connection with the offering, until CSFBC shall have notified the Company and the other Purchasers of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it 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 Offered Securities.
(j) For a period of 135 days after the date of the initial offering of the Offered Securities by the Purchasers, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue. The Company will not at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the offer and sale of the Offered Securities.
(k) The Company will file use its best efforts in cooperation with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided Purchasers to cause the Company by each Offered Securities to be eligible for the PORTAL trading system of the Underwriters and identified by each National Association of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); providedSecurities Dealers, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.Inc.
(xiiil) The Company will cause Xxxxxxx Xxxxx LLP to deliver to apply the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) net proceeds of the Servicing Agreement, addressed to offering and the Underwriters, with respect to the transfer sale of the related Prefunded Contracts substantially Offered Securities in the form manner set forth in the Offering Document under the caption "Sources and Uses of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsFunds".
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative CSFBC promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the RepresentativeCSFBC's consent, consent (which consent will shall not be unreasonably be withheld). The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Purchasers, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify CSFBC of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither CSFBC's consent to, nor the Purchasers' delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter CSFBC copies of the Registration Statementany preliminary offering circular, the Prospectus and any preliminary Prospectus Supplement related thereto offering circular and all amendments and supplements to such documents, in each case as soon as available and in such quantities as CSFBC requests, and the Company will furnish to CSFBC on the date hereof three copies of the Offering Document signed by a duly authorized officer EXHIBIT 10.14 of the Company, one of which will include the independent accountants' reports therein manually signed by such independent accountants. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to CSFBC (and, upon request, to each Underwriter may reasonably requestof the other Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter CSFBC designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedOffered Securities by the Purchasers, however, provided that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposestate.
(ixd) For a During the period from of ten years (or such lesser period as the date of this Agreement until Offered Securities or Exchange Securities (as defined in the retirement of the NotesRegistration Rights Agreement) are outstanding) hereafter, the Company will furnish to the Underwriters copies CSFBC and, upon request, to each of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreementother Purchasers, as soon as practicable after the end of each fiscal year, a copy of its annual report to shareholders for such statements year; and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you CSFBC and, upon request, to each of the other Purchasers (i) as soon as practicableavailable, (A) all documents distributed, a copy of each report or caused to be distributed, by the Servicer other document furnished to the NoteholdersEXHIBIT 10.14 Commission or mailed to its shareholders generally, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (Cii) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you CSFBC may reasonably request.
(ae) On During the period of two years (or before such lesser period as the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and Offered Securities or Exchange Securities are outstanding) after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts will, upon request, furnish to be marked to show the Trust's absolute ownership CSFBC, each of the related Prefunded Contracts other Purchasers and shall cause any holder of Offered Securities a copy of the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Offered Securities.
(f) During the period of two years (or such lesser period as the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and Offered Securities or Exchange Securities are outstanding) after the related Prefunding Closing Date, the Company shall will not, and shall instruct will not permit any of its affiliates (as defined in Rule 144 under the Servicer not Securities Act) to, take resell any action inconsistent with of the Trust's ownership Offered Securities that have been reacquired by any of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreementthem.
(xiig) During the period of two years (or such lesser period as the Offered Securities or Exchange Securities are outstanding) after the Closing Date, the Company will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(h) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided pay all expenses incidental to the Company by each performance of its obligations under the Underwriters and identified by each of them as such Operative Documents, including (i) no later than the date that fees and expenses of the Prospectus Supplement is filed with respect to "computational materials" Trustee and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or its professional advisers; (ii) no later than two days following their date all expenses in connection with the execution, issue, authentication, packaging and initial delivery of first use the Offered Securities, the preparation and printing of the Operative Documents, the Offered Securities, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered EXHIBIT 10.14 Securities; (iii) the cost of qualifying the Offered Securities for trading in The Portal(SM) Market ("PORTAL") and any expenses incidental thereto; (iv) the cost of any advertising approved by the Company in connection with respect to "collateral term sheets" the issue of the Offered Securities; (as v) any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities for sale under the laws of such term is interpreted jurisdictions in the No-Action Letters)United States and Canada as CSFBC designates and the printing of memoranda relating thereto; provided, however, that prior (vi) any fees charged by investment rating agencies for the rating of the Offered Securities; and (vii) expenses incurred in distributing preliminary offering circulars and the offering circulars (including any amendments and supplements thereto) to such filing the Purchasers. The Company will also pay or reimburse the Purchasers (to the extent incurred by them) for all travel expenses of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by Purchasers and the Company, each 's officers and employees and any other expenses of the Underwriters must comply with their obligations pursuant to Section 4 Purchasers and the Company must receive in connection with attending or hosting meetings with prospective purchasers of the Offered Securities from the Purchasers.
(i) In connection with the offering, until CSFBC shall have notified the Company and the other Purchasers of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 letter from Xxxxx Xxxxxxxx LLPbeneficial interest any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it nor any of its affiliates will make bids or purchases for the purpose of creating actual, certified public accountantsor apparent, satisfactory in form and substance to active trading in, or of raising the Companyprice of, to the effect that such accountants have performed certain specified procedures, all Offered Securities.
(j) For a period of which have been agreed to 180 days after the date of the initial offering of the Offered Securities by the CompanyEXHIBIT 10.14 Purchasers, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any United States dollar-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue, or publicly disclose the intention to be materialmake any such offer, sale, pledge or disposition, without the prior written consent of CSFBC. The Company shall file will not at any corrected ABS Term Sheets described in time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(vi4(2) as soon as practicable following receipt thereofof the Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the offer and sale of the Offered Securities.
(xiiik) The Company will cause Xxxxxxx Xxxxx LLP use its best efforts to deliver to have the Underwriters on or before Offered Securities become eligible for the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsPORTAL trading system.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Aqua Chem Inc)
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative CSFBC promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any supplementation unless such amendment of or supplement has been delivered to the Registration Statement or the Prospectus or for any additional information CSFBC within a reasonable period of time prior to its expected use and the Company will also advise the Representative promptly of any has made all reasonable changes requested by CSFBC with respect to such amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) supplement. If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Purchasers, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any such time to amend or supplement the Prospectus Offering Document to comply with the Actany applicable law, the Company promptly will prepare notify CSFBC of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission or an effect such compliance. Neither CSFBC's consent to, nor the Purchasers' delivery to offerees or investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter CSFBC copies of the Registration Statementany Preliminary Offering Circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as CSFBC reasonably requests. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to CSFBC and, upon request, to each Underwriter may reasonably requestof the other Purchasers and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter CSFBC designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedOffered Securities by the Purchasers, however, provided that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposestate.
(ixd) For a During the period from of two years hereafter or for such shorter period as the date of this Agreement until the retirement of the Notes, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes Offered Securities are outstanding, the Company will furnish to you CSFBC and, upon request, to each of the other Purchasers, as soon as practicablepracticable after the end of each fiscal year, (A) all documents distributed, or caused a copy of its annual report to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by stockholders for such year; and the Company will furnish to CSFBC and, upon request, to each of the other Purchasers (i) as soon as available, a copy of each report and any definitive proxy statement of the Company filed with the Commission pursuant to under the Exchange ActAct or mailed to stockholders, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (Cii) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you CSFBC may reasonably request.
(ae) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts will, upon request, furnish to be marked to show the Trust's absolute ownership CSFBC, each of the related Prefunded Contracts other Purchasers and shall cause any holder of Offered Securities a copy of the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Offered Securities.
(f) During the period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and two years after the related Prefunding Closing Date, the Company shall will not, and shall instruct will not permit any of its affiliates (as defined in Rule 144 under the Servicer not Securities Act) to, take resell any action inconsistent with of the Trust's ownership Offered Securities that have been reacquired by any of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreementthem.
(xiig) During the period of two years after the Closing Date, the Company will not and will cause the Guarantors not to be or become, an open-end investment company, unit investment trust or face-amount certificate company that is, or is required to be, registered under Section 8 of the Investment Company Act.
(h) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided pay all expenses incidental to the Company by each performance of its obligations under this Agreement, the Underwriters Indenture, and identified by each of them as such the Registration Rights Agreement, including (i) no later than the date that fees and expenses of the Prospectus Supplement is filed with respect to "computational materials" Trustee and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or its professional advisers; (ii) no later all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Securities (as defined in the Registration Rights Agreement), the preparation and printing of this Agreement, the Registration Rights Agreement, the Offered Securities, the Indenture, the Offering Document and any amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and as applicable, the Exchange Securities; (iii) the cost of qualifying the Offered Securities for trading in The Portal/SM/ Market ("PORTAL") and any expenses incidental thereto; (iv) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities; (v) any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities or the Exchange Securities for sale under the laws of such jurisdictions in the United States and Canada as CSFBC designates and the printing of memoranda relating thereto; (vi) any fees charged by investment rating agencies for the rating of the Securities or the Exchange Securities; and (vii) expenses incurred in distributing Preliminary Offering Circulars and the Offering Document (including any amendments and supplements thereto) to the Purchasers. Each of the Company and the Purchasers will pay their respective travel expenses and any other expenses incurred by them in connection with attending or hosting meetings with prospective purchasers of the Offered Securities from the Purchasers.
(i) In connection with the offering of the Offered Securities, until CSFBC shall have notified the Company and the other Purchasers of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it 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 Offered Securities.
(j) From the date hereof through the Closing Date, except as contemplated in the Offering Document, the Company will not and will cause the Guarantors not to offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any United States dollar denominated debt securities issued or guaranteed by the Issuers and having a maturity of more than two days following their one year from the date of first use with respect issue, or publicly disclose the intention to "collateral term sheets" (as make any such term is interpreted in offer, sale, pledge or disposition, without the No-Action Letters); providedprior written consent of CSFBC. The Company will not and will cause the Guarantors not to at any time offer, howeversell, that prior contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on offer, sale, pledge, contract or disposition would cause the Contract Pool informationexemption afforded by Section 4(2) by the Company, each of the Underwriters must comply with their obligations pursuant Securities Act or the safe harbor of Regulation S thereunder to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance cease to be applicable to the Company, offer and sale of the Offered Securities.
(k) To use its best efforts to cause the effect that such accountants have performed certain specified procedures, all of which have been agreed Offered Securities to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined be designated PORTAL securities in accordance with such agreed upon proceduresthe rules and regulations of The Nasdaq Stock Market, is accurate except as Inc.
(l) To use its best efforts to such matters that are not deemed do and perform all things required or necessary to be done and performed under this Agreement by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver prior to the Underwriters on or before the Prefunding Closing Date, as the opinions required case may be, and to be furnished pursuant satisfy all conditions precedent to Section 2.01(j) the delivery of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsOffered Securities.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative CSFB promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the RepresentativeCSFB's consent, which consent will may not be unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Act, resale of the Offered Securities by the Purchasers any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify CSFB of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither CSFB's consent to, nor the Purchasers' delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter CSFB copies of the Registration Statementany Preliminary Offering Circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Circular and all amendments and supplements to such documents, in each case as soon as available and in such quantities as CSFB reasonably requests, and the Company will furnish to CSFB on the date hereof three copies of the Offering Document signed by a duly authorized officer of the Company. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to CSFB (and, upon request, to each Underwriter may reasonably requestof the other Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter CSFB designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedOffered Securities by the Purchasers, however, PROVIDED that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension such state or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposeprovince.
(ixd) For a During the period from the date of this Agreement until the retirement of the Notesfive years hereafter, the Company will furnish to the Underwriters copies CSFB and, upon request, to each of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreementother Purchasers, as soon as practicable after the end of each fiscal year, a copy of its annual report to shareholders for such statements year; and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicableCSFB and, (A) all documents distributedupon request, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order each of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, other Purchasers such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you CSFB may reasonably request.
(ae) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts will, upon request, furnish to be marked to show the Trust's absolute ownership CSFB, each of the related Prefunded Contracts other Purchasers and shall cause any holder of Offered Securities a copy of the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Offered Securities.
(f) Until all of the related Prefunded Contracts Initial Securities have had their transfer restrictions removed pursuant to the Registration Rights Agreement, the Company will not, and will not permit any of its affiliates (as defined in Rule 144 under the subsequent transfer Securities Act) to, resell any of the related Prefunded Contracts to Offered Securities that have been reacquired by any of them, except for Offered Securities purchased by the TrustCompany or any of its affiliates and resold in a transaction registered under the Securities Act, and PROVIDED, HOWEVER, that the foregoing shall not in any way limit resales of Exchange Securities.
(g) During the period of two years after the related Prefunding Closing Date, neither the Company shall notnor any Guarantor will be or become an open-end investment company, and shall instruct unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Servicer not toInvestment Company Act.
(h) The Company will pay all expenses incidental to the performance of its obligations under this Agreement, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Registration Rights Agreement, including (i) the fees and expenses of the Trustee and its professional advisors; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Securities (as defined in the Registration Rights Agreement), the preparation and printing of this Agreement, the Registration Rights Agreement, the Offered Securities, the Indenture, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and as applicable the Exchange Securities; (iii) the cost of qualifying the Offered Securities for trading in The Portal(SM) Market ("PORTAL") and any expenses incidental thereto; (iv) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities (v) for any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities or the Exchange Securities for sale under the laws of such jurisdictions in the United States and Canada as CSFB designates and the printing of memoranda relating thereto, (vi) for any fees charged by investment rating agencies for the rating of the Securities or the Exchange Securities, and (vii) for expenses incurred in distributing Preliminary Offering Circulars and the Offering Circular (including any amendments and supplements thereto) to the Purchasers. The Company will also pay or reimburse the Purchasers (to the extent incurred by them) for all reasonable travel expenses of the Purchasers and the Company's officers and employees and any other reasonable expenses of the Purchasers and the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities from the Purchasers.
(xiii) The In connection with the offering, until CSFB shall have notified the Company and the other Purchasers of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it 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 Offered Securities.
(j) For a period of 180 days after the date of the initial offering of the Offered Securities by the Purchasers, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to registration statement under the Company by each of the Underwriters and identified by each of them as such Securities Act (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer Offered Securities as contemplated by the Registration Rights Agreement) relating to, any United States dollar-denominated debt securities issued or guaranteed by the Company or any Guarantor and having a maturity of more than one year from the related Prefunded Contracts substantially in date of issue, or publicly disclose the form intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contracts.
(xiv) CSFB. The Company and the Guarantors will deliver not at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to exemption afforded by Section 2.01(j4(2) of the Servicing Agreement and (ii) on Securities Act or before each Prefunding Transfer Date, the Transfer Certificate required safe harbor of Regulation S thereunder to cease to be furnished pursuant applicable to Section 2.01(c) the offer and sale of the Servicing AgreementOffered Securities.
Appears in 1 contract
Samples: Purchase Agreement (PrimeWood, Inc.)
Certain Agreements of the Company. The Company agrees with the several Underwriters that:
(ia) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative Representatives promptly of any proposal to amend or supplement the Preliminary Prospectus, the General Disclosure Package or the Prospectus and will not effect such filing pursuant amendment or supplementation without the Representatives’ consent (which consent shall not be unreasonably withheld). If, at any time prior to Rule 424(b)the completion of the resale of the Offered Securities by the Underwriters, any event occurs as a result of which the Preliminary Prospectus, the Prospectus or the General Disclosure Package or any Supplemental Marketing Material would include an 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, not misleading, the Company promptly will notify the Representatives of such event and promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission. Neither the Representatives’ consent to, nor the Underwriters’ delivery to offerees or investors of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5.
(iib) Prior to the termination of the offering of the NotesOffered Securities, the Company will not file any amendment of to the Registration Statement or supplement (including the Prospectus or any Preliminary Prospectus) to the Base Prospectus unless the Company has furnished the Representative with you a copy for its your review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, to which consent will not unreasonably be withheldyou reasonably object. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the The Company will file cause the Prospectus, properly completed, and any supplement theretothereto to be filed in a form approved by the Representatives, such approval not to be unreasonably withheld, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative Representatives of such timely filing.
(iii) . The Company will promptly advise the Representative promptly of any proposal to amend or supplement the Registration Statement as filed or Representatives (i) when the Prospectus, and will not effect such any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Offered Securities, any amendment to the Registration Statement shall have been filed or supplement without the Representative's consentbecome effective, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly (iii) of any request by the Commission or its staff for any amendment of or supplement to the Registration Statement or for any supplement to the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threat threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act, (v) of the receipt by the Company of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act and (vi) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Offered Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose, and the . The Company will use its best efforts to prevent the issuance of any such stop order and or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the lifting withdrawal of any issued ordersuch stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(vc) If, at any time when a Prospectus prospectus relating to the Notes Securities is required to be delivered under the ActSecurities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Prospectus as then amended or supplemented would include an any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were mademade at such time, not misleading, or if it is shall be necessary at any time to amend the Registration Statement, file a new registration statement or supplement the Prospectus to comply with the ActSecurities Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Prospectus, the Company promptly will (i) notify the Representatives of any such event, (ii) subject to the first two sentences of Section 4(b) above, prepare and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) an amendment or supplement or new registration statement which will correct such statement or omission or an amendment or supplement which will effect such compliance, (iii) use its 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 Prospectus and (iv) supply any supplemented Prospectus to you in such quantities as you may reasonably request.
(vid) As soon as practicable, the Company will cause the Trust to make generally available to its security holders and to the Noteholders and the holders of the Residual Interest Instruments of the Trust Representatives an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder158.
(viie) The Company will furnish to each Underwriter the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration StatementStatement (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 an Underwriter or dealer may be required by the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Communication and any preliminary Prospectus Supplement related supplement thereto and all amendments and supplements to such documents, in each case as soon as available and in such quantities as each Underwriter the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(viiif) Before making, preparing, using, authorizing, approving or referring to any Issuer Free Writing Communication, the Company will furnish to the Representatives and counsel for the Underwriters a copy of such written communication for review and will not make, prepare, use, authorize, approve or refer to any such written communication to which the Representatives reasonably object.
(g) The Company will cooperate with each Underwriter the Underwriters in arranging for connection with the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions states in the United States as each Underwriter designates the Representatives designate and will continue such qualifications in effect so long as required for the distribution resale of the NotesOffered Securities by the Underwriters provided that the Company will not be required to qualify as a foreign corporation or to file a general consent to service of process in any such state.
(h) The Company agrees that, unless it has or shall have obtained the prior written consent of the Representatives, and each Underwriter, severally and not jointly, agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Communication or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the final term sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule B hereto and any electronic road show. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Communication and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company consents to the use by any Underwriter of a free writing prospectus that (i) is not an “issuer free writing prospectus” as defined in Rule 433 or (ii) contains only (A) information describing the preliminary terms of the Offered Securities or their offering, (B) information that describes the final terms of the Offered Securities or their offering and that is included in the final term sheet of the Company or (C) information permitted under Rule 134 under the Securities Act; provided that each Underwriter severally covenants with the Company not to take any action without the Company’s consent which consent shall be confirmed in writing that would result in the Company being required to file with the Commission under Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of such Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
(j) The Company will assist the Underwriters in arranging for the Offered Securities to be eligible for clearance and settlement through DTC.
(k) During the period of two years after the Closing Date, the Company will not be, or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(l) The Company will pay all expenses incidental to the performance of their obligations under this Agreement and the Indenture including (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities, the preparation and printing of this Agreement, the Registration Statement, the Offered Securities, the Indenture, the Preliminary Prospectus, any other documents comprising any part of the General Disclosure Package, the Prospectus, all amendments and supplements thereto, each item of Supplemental Marketing Material and any other document relating to the issuance, offer, sale and delivery of the Offered Securities; (iii) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities; (iv) for any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities for sale under the laws of such jurisdictions as the Representatives designate and the printing of memoranda relating thereto; (v) for any fees charged by investment rating agencies for the rating of the Offered Securities; (vi) for expenses incurred in the distribution and filing with the Commission of the Registration Statement, the Preliminary Prospectus, any other documents comprising any part of the General Disclosure Package, the Prospectus (including any amendments and supplements thereto) and any Supplemental Marketing Material to the Underwriters and (vii) any filings required to be made with the Financial Industry Regulatory Authority, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings). The Company will reimburse the Underwriters for all travel expenses of the Underwriters and the Company’s officers and employees and any other expenses of the Underwriters and the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities.
(m) The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act (without giving effect to the proviso therein) and in any event prior to the Closing Date.
(n) In connection with the offering, until the Representatives shall have notified the Company and the other Underwriters of the completion of the resale of the Offered Securities, except as set forth in the General Disclosure Package neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it 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 Offered Securities.
(o) During the period beginning on the date hereof and ending on the Closing Date, the Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Securities Act relating to, any debt securities issued by the Company and having a maturity of more than one year from the date of issue, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing. For the avoidance of doubt, nothing in this Section 4(o) shall prohibit the Company from entering into or consummating any securitization transactions or from incurring indebtedness under any Bank Lines, Credit Enhancement Agreements, Refinancing Indebtedness, Residual Funding Facilities or Permitted Receivables Financing or any indebtedness incurred by any Receivables Entity (in each case, as defined in the General Disclosure Package and the Prospectus) or from issuing debt securities under the Company’s term note program pursuant to the Company’s registration statement on Form S-3 (No. 333-218881).
(p) The Company will apply the net proceeds from the sale of the Offered Securities as described in each of the General Disclosure Package and the Prospectus under the heading “Use of Proceeds.”
(q) The Company will not take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Offered Securities; provided, however, that nothing herein shall prevent or prohibit the Company shall not be obligated Company’s election to qualify to do business in any jurisdiction in which it is not currently so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purpose.
(ix) For a period from the date of this Agreement until the retirement of the Notes, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission redeem notes pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information optional redemption provisions set forth in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably requestapplicable indenture.
(a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Samples: Underwriting Agreement (General Motors Financial Company, Inc.)
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative Purchasers promptly of any proposal to amend or supplement the Registration Statement as filed or General Disclosure Package and the Prospectus, Offering Circular prior to any resale of the Securities by the Purchasers and will not effect such amendment or supplement supplementation without the Representative's Purchasers’ consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Purchasers, any event occurs as a result of which the Prospectus General Disclosure Package and the Offering Circular as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify the Purchasers of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither the Purchasers’ consent to, nor the Purchasers’ delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter the Purchasers copies of the Registration Statementany preliminary offering circular, the Prospectus General Disclosure Package and any preliminary Prospectus Supplement related thereto the Offering Circular and all amendments and supplements to such documents, in each case as soon as available and in such quantities as each Underwriter may reasonably the Purchasers request, and the Company will furnish to the Purchasers on the date hereof three copies of the General Disclosure Package and the Offering Circular. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to the Purchasers and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under investmentunder the laws of such jurisdictions states in the United States as each Underwriter either Purchaser designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; provided, however, Offered Securities by the Purchasers provided that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposestate.
(ixd) For a During the period from of two years after the date of this Agreement until the retirement later of the Notes, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, First Closing Date and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably request.
(a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding last Optional Closing Date, the Company shall cause its computer records for the related Prefunded Contracts will, upon request, furnish to be marked to show the Trust's absolute ownership each of the related Prefunded Contracts other Purchasers and shall cause any holder of Offered Securities a copy of the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Securities.
(e) During the period of two years after the later of the related Prefunded Contracts First Closing Date and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding last Optional Closing Date, the Company shall will not, and shall instruct will not permit any of its affiliates (as defined in Rule 144 under the Servicer not Securities Act) to, take resell any action inconsistent with of the Trust's ownership Offered Securities that have been reacquired by any of such Prefunded Contractsthem.
(f) During the period of two years after the later of the First Closing Date and the last Optional Closing Date, other than as permitted by the Company will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(g) The Company will pay all expenses incidental to the performance of its obligations under this Agreement, the Indenture and the Trust Registration Rights Agreement, including (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Securities (as defined in the Registration Rights Agreement), the printing of the General Disclosure Package and the Offering Circular and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and the Underlying Shares, (iii) the cost of qualifying the Offered Securities for trading in The PortalSM Market (“PORTAL”) of The Nasdaq Stock Market, Inc. and any expenses incidental thereto, (iv) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities, (v) for any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities for sale under the laws of such jurisdictions as the Purchasers designate and the printing of memoranda relating thereto, (v) for any fees charged by investment rating agencies for the rating of the Offered Securities, and (vi) for expenses incurred in distributing preliminary offering circulars, the General Disclosure Package and the Offering Circular (including any amendments and supplements thereto) to the Purchasers. The Company will reimburse the Purchasers for all travel expenses of the Company’s officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities.
(xiih) In connection with the offering, until Credit Suisse shall have notified the Company and the other Purchaser of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities, except to the extent necessary to give effect to the Stock Repurchase; and neither it 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 Offered Securities.
(i) For a period of 90 days after the date of the initial offering of the Offered Securities by the Purchasers, the Company will not offer, sell, contract to sell, pledge, or otherwise dispose of, directly or indirectly, any United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue any shares of Common Stock of the Company or securities convertible into or exchangeable or exercisable for shares of Common Stock of the Company or warrants or other rights to purchase shares of Common Stock of the Company, without the prior written consent of the Purchasers, or publicly disclose the intention to make any such offer, sale, pledge or disposition, except (i) the filing of the shelf registration statement covering resales of the Offered Securities or the Common Stock issuable upon conversion of the notes or a registration statement on Form S-8, (ii) the issuance by us of shares of Common Stock upon conversion of the notes, the exercise of employee stock options outstanding on the date of the Offering Document or the exercise, conversion or exchange of options, warrants or convertible securities in each case outstanding on the date of the Offering Circular, (iii) grants of employee stock options pursuant to the terms of a plan in effect on the date hereof, issuances of Offered Securities pursuant to the exercise of such options or the exercise of any other employee stock options outstanding on the date hereof or issuances of Offered Securities pursuant to the Company’s dividend reinvestment plan. The Company will not at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable to the offer and sale of the Offered Securities.
(j) The Company will file with use the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to net proceeds from the Company by each sale of the Underwriters and identified by each of them as such (i) no later than Offered Securities to pay for the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 Stock Repurchase and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory intends to use the remainder of such net proceeds in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets manner described in Section 4(vi) as soon as practicable following receipt thereofthe General Disclosure Package and the Offering Circular under the caption “Use of Proceeds”.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Kemet Corp)
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative CSFBC promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the RepresentativeCSFBC's consent, which consent will shall not be unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Act, resale of the Offered Securities by the Purchasers any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any such time to amend or supplement the Prospectus Offering Document to comply with the Act, any applicable law the Company promptly will prepare notify CSFBC of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission or an effect such compliance. Neither CSFBC's consent to, nor the Purchasers' delivery to offerees or investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter CSFBC copies of the Registration Statementany preliminary offering memorandum, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as CSFBC requests. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act and is not exempt from reporting pursuant to Rule 12g3-2(b) under the Exchange Act, the Company will promptly furnish or cause to be furnished to CSFBC and, upon request, to each Underwriter may reasonably requestof the other Purchasers and, upon request of holders, beneficial owners and prospective purchasers of the Offered Securities, to such holders, beneficial owners and purchasers, copies of the information required to be delivered to holders, beneficial owners and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders and beneficial owners of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions states in the United States as each Underwriter CSFBC designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; provided, however, Offered Securities by the Purchasers provided that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposestate.
(ixd) For a During the period from of two years after the date of this Agreement until the retirement later of the Notes, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, First Closing Date and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably request.
(a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding last Optional Closing Date, the Company shall cause its computer records for the related Prefunded Contracts will, upon request, furnish to be marked to show the Trust's absolute ownership CSFBC, each of the related Prefunded Contracts other Purchasers and shall cause any holder of Offered Securities a copy of the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Securities.
(e) During the period of two years after the later of the related Prefunded Contracts First Closing Date and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding last Optional Closing Date, the Company shall notwill not be or become, and shall instruct an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust AgreementInvestment Company Act.
(xiif) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided pay all expenses incidental to the Company by each performance of its obligations under this Agreement, the Underwriters Registration Rights Agreement (except as otherwise specified) and identified by each of them as such the Indenture, including (i) no later than the date that fees and expenses of the Prospectus Supplement is filed with respect to "computational materials" Trustee and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or its professional advisers; (ii) no later than two days following their date all expenses in connection with the execution, issue, authentication, packaging and initial delivery of first use with respect the Offered Securities, the preparation and printing of this Agreement, the Securities, the Indenture, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities; (iii) the cost of qualifying the Offered Securities for trading in The PortalSM Market ("collateral term sheets" PORTAL") of The Nasdaq Stock Market, Inc. and any expenses incidental thereto, (as such term is interpreted in iv) the No-Action Letters); provided, however, that prior to such filing cost of an ABS Term Sheet (other than any ABS Term Sheets that are not based maintaining its listing on the Contract Pool informationNational Market of the Nasdaq Stock Market and qualifying for listing the Underlying Securities, and any expenses incidental thereto, (v) for any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities for sale under the laws of such jurisdictions as CSFBC designates and the printing of memoranda relating thereto, (vi) for any fees charged by investment rating agencies for rating of the Offered Securities, and (vii) for expenses incurred in distributing the Offering Document (including any amendments and supplements thereto). The Company will reimburse the Purchasers for all travel expenses of the Purchasers and the Company's officers, each employees and agents and any other expenses of the Underwriters must comply with their obligations pursuant to Section 4 Purchasers and the Company must receive in connection with attending or hosting meetings with prospective purchasers of the Offered Securities.
(g) In connection with the offering, until CSFBC shall have notified the Company and the other Purchasers of the completion of the resale of the Offered Securities, neither the Company nor any of its Affiliates has or will, 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 letter beneficial interest any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it 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 Offered Securities.
(h) For a period of 90 days after the date of the initial offering of the Offered Securities by the Purchasers, the Company will not offer, sell, contract to sell, pledge, or otherwise dispose of, directly or indirectly, any U.S. dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from Xxxxx Xxxxxxxx LLPthe date of issue, certified public accountantsexcept issuances of Offered Securities pursuant to the conversion or exchange of convertible or exchangeable securities or the exercise of warrants or options, satisfactory in form and substance each case outstanding on the date hereof, grants of employee stock options pursuant to the terms of a plan in effect on the date hereof, issuances of Offered Securities pursuant to the exercise of such options or the exercise of any other employee stock options outstanding on the date hereof or issuances of Offered Securities pursuant to the Company's dividend reinvestment plan, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file will not at any corrected ABS Term Sheets described in time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(vi4(2) as soon as practicable following receipt thereofof the Securities Act to cease to be applicable to the offer and sale of the Securities.
(xiiii) The In connection with the sale of the Offered Securities to the Purchasers the Company will cause Xxxxxxx Xxxxx LLP to deliver to file the Underwriters notice on or before Form D required by Rule 503 under the Prefunding Closing Date, Securities Act within the opinions time required to by such Rule and otherwise in compliance with such rule. A copy of such notice shall be furnished pursuant promptly to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsCSFBC.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Beyond Com Corp)
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative Co-Representatives promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the Co-Representative's ’s consent, which consent will shall not be unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Act, resale of the Offered Securities by the Purchasers any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include (as of its date or the last date of its amendment or supplementation, whichever is later) an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify the Co-Representatives of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither the Co-Representatives’ consent to, nor the Purchasers’ delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter the Co-Representatives copies of the Registration Statement, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as the Co-Representatives may from time to time request, and the Company will furnish to the Co-Representatives on the Closing Date three copies of the Final Offering Circular signed by a duly authorized officer of the Company, one of which will include the independent accountants’ reports therein manually signed by such independent accountants. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, for so long as any Offered Securities are outstanding, the Company will promptly furnish or cause to be furnished to the Co-Representatives (and, upon request, to each Underwriter may reasonably requestof the other Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging promptly from time to time take such action as any Purchaser may reasonably request to arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter any Purchaser designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; provided, however, Offered Securities by the Purchasers provided that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension such state or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposeprovince.
(ixd) For a During the period from the date of this Agreement until the retirement of the Notesfive years hereafter, the Company will furnish to the Underwriters copies Co-Representatives and, upon request, to each of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreementother Purchasers, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such statements year; and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you the Co-Representatives and, upon request, to each of the other Purchasers (i) as soon as practicableavailable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by a copy of each report and any definitive proxy statement of the Company filed with the Commission pursuant to under the Exchange ActAct or mailed to stockholders, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (Cii) from time to time, such other information in the possession of the Company concerning the Trust and any other public information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you the Co-Representatives may reasonably request.
(a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to any such filing of an ABS Term Sheet (other than any ABS Term Sheets document filed with the Commission that are not based is publicly available in electronic form on the Contract Pool information) Commission’s XXXXX System shall not be provided unless requested by the CompanyCo-Representatives or any Purchaser, as applicable.
(e) During the period of two years after the Closing Date, the Company will, upon request, furnish to the Co-Representatives, each of the Underwriters must comply with their obligations pursuant to Section 4 other Purchasers and any holder of Offered Securities a copy of the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance restrictions on transfer applicable to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereofSecurities.
(xiiif) During the period of two years after the Closing Date, the Company will not, and will not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Offered Securities that have been reacquired by any of them.
(g) During the period of two years after the Closing Date, neither the Company nor Holdings will be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(h) The Company will cause Xxxxxxx Xxxxx LLP to deliver pay all expenses incidental to the Underwriters performance of its obligations under the Operative Documents including (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Securities, the preparation and printing of this Agreement, the Registration Rights Agreement, the Offered Securities, the Indenture, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and, as applicable, the Exchange Securities; (iii) the cost of qualifying the Offered Securities for trading in The PortalSM Market (“PORTAL”) of The Nasdaq Stock Market, Inc. and any expenses incidental thereto; (iv) expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities or the Exchange Securities for sale under the laws of such jurisdictions in the United States and Canada as any Purchaser designates and the printing of memoranda relating thereto; (v) any fees charged by investment rating agencies for the rating of the Offered Securities or the Exchange Securities; and (vi) expenses incurred in distributing the Offering Document (including any amendments and supplements thereto) to the Purchasers. The Purchasers will pay for all travel expenses of the Company’s officers and employees and any other expenses of the Company in connection with attending meetings with prospective purchasers of the Offered Securities, including the cost of an airplane for such travel. It is understood that, except as provided in this Section and in Sections 7 and 9 hereof, the Purchasers will pay for all travel expenses of the Purchasers’ employees and any other out-of-pocket expenses of the Purchasers in connection with attending or hosting meetings with prospective purchasers of the Offered Securities, the fees of their counsel, transfer taxes on the resale of any of the Offered Securities by them and any advertising expenses connected with any offers they make.
(i) In connection with the Offering, until the Co-Representatives shall have notified the Company and the other Purchasers of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or before will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it nor any of its affiliates will make bids or purchases for the Prefunding purpose of creating actual, or apparent, active trading in, or of raising the price of, the Offered Securities.
(j) For a period of 90 days after the date of the initial offering of the Offered Securities by the Purchasers, the Company will not offer, sell, contract to sell, pledge, or otherwise dispose of, directly or indirectly, any United States dollar-denominated debt securities that are substantially similar to the Offered Securities and are issued or guaranteed by the Company or guaranteed by Holdings, and having a maturity of more than one year from the date of issue, without the prior written consent of the Co-Representatives. The Company will not at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable to the offer and sale of the Securities.
(k) The Company will use its best efforts to effect the inclusion of the Offered Securities in PORTAL and to maintain the listing of the Offered Securities on PORTAL for so long as the Offered Securities (not including the Exchange Securities) are outstanding.
(l) The Company will obtain the approval of DTC for “book-entry” transfer of the Offered Securities, and will comply with all of its agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Offered Securities by DTC for “book-entry” transfer.
(m) The Company will not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would be integrated with the sale of the Offered Securities to the Purchasers or pursuant to exempt resales of the Offered Securities in a manner that would require the registration of any such sale of the Offered Securities under the Securities Act.
(n) The Company will not voluntarily claim, and will actively resist any attempts to claim, the benefit of any usury laws against the holders of any Notes and the related Guaranties.
(o) The Company will cause, as required by the Registration Rights Agreement, and subject to the terms, conditions and limitations thereof, the Registered Exchange Offer to be made in the appropriate form to permit Exchange Securities and guarantees thereof by the Guarantors registered pursuant to the Securities Act to be offered in exchange for the Offered Securities and to comply with all applicable federal and state securities laws in connection with the Registered Exchange Offer.
(p) The Company will comply with all of its agreements set forth in the Registration Rights Agreement; provided, however, that the sole monetary damages for breach of this obligation and the obligations set forth in the preceding paragraph shall be the liquidated damages provided for by the Registration Rights Agreement.
(q) The Company will use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Offered Securities.
(r) On the Closing Date, the opinions required Company will mail irrevocable notices of redemption to be furnished pursuant to Section 2.01(j) the holders of the Servicing Agreement, addressed to the Underwriters, Redeemed Securities in compliance with respect to the transfer Section 11.5 of each of the related Prefunded Contracts substantially in 9½% Indenture and the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contracts8.8% Indenture.
(xivs) The Company will deliver to On the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate Company will deposit with the Trustee sufficient funds to pay the Redemption Price (as defined in the each of the 9½% Indenture and certificate from each secured creditor required to be furnished pursuant to Section 2.01(jthe 8.8% Indenture) of the Servicing Agreement Redeemed Securities, including any accrued interest on such securities to the redemption date thereof, in compliance with Sections 4.1 and (ii) on or before 11.6 of each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement9½% Indenture and the 8.8% Indenture.
(t) The Company and the Guarantors shall take all such further actions by the Closing Date as may be necessary to effect the satisfaction and discharge of the 9½% Indenture and of the 8.8% Indenture in compliance with the terms and conditions of Article IV of such indentures.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the Representative's ’s consent, which consent will shall not be unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Act, resale of the Offered Securities by the Purchasers any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include (as of its date or the last date of its amendment or supplementation, whichever is later) an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify the Representative of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither the Representative’s consent to, nor the Purchasers’ delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter the Representative copies of the Registration Statement, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as the Representative may from time to time request, and the Company will furnish to the Representative on the Closing Date three copies of the Final Offering Circular signed by a duly authorized officer of the Company, one of which will include the independent accountants’ reports therein manually signed by such independent accountants. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, for so long as any Offered Securities are outstanding, the Company will promptly furnish or cause to be furnished to the Representative (and, upon request, to each Underwriter may reasonably requestof the other Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging promptly from time to time take such action as any Purchaser may reasonably request to arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter any Purchaser designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; provided, however, Offered Securities by the Purchasers provided that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension such state or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposeprovince.
(ixd) For a During the period from the date of this Agreement until the retirement of the Notesfive years hereafter, the Company will furnish to the Underwriters copies Representative and, upon request, to each of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreementother Purchasers, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such statements year; and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you the Representative and, upon request, to each of the other Purchasers (i) as soon as practicableavailable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by a copy of each report and any definitive proxy statement of the Company filed with the Commission pursuant to under the Exchange ActAct or mailed to stockholders, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (Cii) from time to time, such other information in the possession of the Company concerning the Trust and any other public information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you the Representative may reasonably request.
(a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to any such filing of an ABS Term Sheet (other than any ABS Term Sheets document filed with the Commission that are not based is publicly available in electronic form on the Contract Pool information) Commission’s XXXXX System shall not be provided unless requested by the CompanyRepresentative or any Purchaser, as applicable.
(e) During the period of two years after the Closing Date, the Company will, upon request, furnish to the Representative, each of the Underwriters must comply other Purchasers and any holder of Offered Securities a copy of the restrictions on transfer applicable to the Securities.
(f) During the period of two years after the Closing Date, the Company will not, and will not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Offered Securities that have been reacquired by any of them.
(g) During the period of two years after the Closing Date, neither the Company nor Holdings will be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(h) The Company will pay all expenses incidental to the performance of its obligations under the Operative Documents including (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with their obligations pursuant the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, the preparation and printing of this Agreement, the Registration Rights Agreement, the Offered Securities, the Indenture, the Offering Document and amendments and supplements thereto, and any other document relating to Section 4 the issuance, offer, sale and delivery of the Offered Securities; (iii) the cost of qualifying the Offered Securities for trading in The PortalSM Market (“PORTAL”) of The Nasdaq Stock Market, Inc. and any expenses incidental thereto; (iv) expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities for sale under the laws of such jurisdictions in the United States and Canada as any Purchaser designates and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory printing of memoranda relating thereto; (v) any fees charged by investment rating agencies for the rating of the Offered Securities; (vi) any fees for the listing of the Common Stock issuable upon conversion of the Offered Securities on the New York Stock Exchange and (vii) expenses incurred in form distributing the Offering Document (including any amendments and substance supplements thereto) to the Purchasers. The Purchasers will pay for all travel expenses of the Company’s officers and employees and any other expenses of the Company in connection with attending meetings with prospective purchasers of the Offered Securities, including the cost of an airplane for such travel. It is understood that, except as provided in this Section and in Sections 7 and 9 hereof, the Purchasers will pay for all travel expenses of the Purchasers’ employees and any other out-of-pocket expenses of the Purchasers in connection with attending or hosting meetings with prospective purchasers of the Offered Securities, the fees of their counsel, transfer taxes on the resale of any of the Offered Securities by them and any advertising expenses connected with any offers they make.
(i) In connection with the Offering, until the Representative shall have notified the Company and the other Purchasers of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it 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 Offered Securities.
(j) For a period of 90 days after the date of the initial offering of the Offered Securities by the Purchasers, the Company will not offer, sell, contract to sell, pledge, or otherwise dispose of, directly or indirectly, any United States dollar-denominated debt securities that are substantially similar to the effect that such accountants have performed certain specified proceduresOffered Securities, all the $525,000,000 in aggregate principal amount of which have been agreed to senior subordinated notes due 2013 being issued concurrently herewith or any other series of outstanding senior subordinated notes of the Company and are issued or guaranteed by the Company or guaranteed by Holdings, and have a maturity of more than one year from the date of issue, and any shares of Common Stock or securities convertible into or exchangeable or exercisable for shares of Common Stock or warrants or other rights to purchase shares of Common Stock, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior consent of the Representative, except for (i) the filing of the shelf registration statement covering resales of the Offered Securities or the Common Stock issuable upon conversion of the Securities, (ii) the filing of the exchange offer with respect to, or shelf registration statement covering resales of, the securities referred to in the following clause (iii), (iii) the proposed concurrent offering of $525,000,000 in aggregate principal amount of senior subordinated notes due 2013, (iv) the issuance by Holdings of shares of common stock of Holdings upon conversion of the Securities or the exercise, conversion or exchange of options, warrants or convertible securities, in each case outstanding on the date of the Final Offering Circular or issued thereafter not in violation of this covenant and (v) the making by the Company or Holdings of additional equity or equity based awards under employee compensation plans. The foregoing agreement also will not limit the Company’s ability to issue shares, warrants or convertible securities as a result of which Xxxxx Xxxxxxxx LLP have determined consideration for acquisitions, provided that the information included in such ABS Term Sheet number of shares, warrants or convertible securities (if any), provided by the Underwriters to the Company for filing calculated on a current report on Form 8-K pursuant to Section 4 andcommon stock equivalent basis in the case of warrants and convertible securities) that may be issued as consideration for acquisitions may not exceed 2,000,000 unless the recipient of such excess shares, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance warrants or convertible securities agrees with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be materialsubject to the foregoing lock-up agreement with respect to such excess shares, warrants or convertible securities (which agreement may not be amended without the prior written consent of the Representative). The Company shall file will not at any corrected ABS Term Sheets described in time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(vi4(2) as soon as practicable following receipt thereofof the Securities Act to cease to be applicable to the offer and sale of the Securities.
(xiiik) The Company will cause Xxxxxxx Xxxxx LLP use its best efforts to deliver to effect the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) inclusion of the Servicing Agreement, addressed Offered Securities in PORTAL and to maintain the Underwriters, with respect to the transfer listing of the related Prefunded Contracts substantially in Offered Securities on PORTAL for so long as the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsOffered Securities are outstanding.
(xivl) The Company will deliver obtain the approval of DTC for “book-entry” transfer of the Offered Securities, and will comply with all of its agreements set forth in the representation letters of the Company and Holdings to DTC relating to the Underwriters approval of the Offered Securities by DTC for “book-entry” transfer.
(im) on The Company will not sell, offer for sale or before each Prefunding Closing Datesolicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would be integrated with the sale of the Offered Securities to the Purchasers or pursuant to exempt resales of the Offered Securities in a manner that would require the registration of any such sale of the Offered Securities under the Securities Act.
(n) The Company will not voluntarily claim, and will actively resist any attempts to claim, the Officer's Certificate benefit of any usury laws against the holders of any Securities and certificate from each secured creditor the Guaranty.
(o) The Company will comply with all of its agreements set forth in the Registration Rights Agreement; provided, however, that the sole monetary damages for breach of this obligation shall be the liquidated damages provided for by the Registration Rights Agreement.
(p) The Company will use its reasonable best efforts to do and perform all things required or necessary to be furnished pursuant done and performed under this Agreement by it prior to Section 2.01(j) the Closing Date and to satisfy all conditions precedent to the delivery of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing AgreementOffered Securities.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the Underwriters Purchaser that:
(a) In addition to any and all other public statements or disclosures made by the Company in its sole discretion (subject to the last sentence of this Section 8(a)), the Company will issue a press release and file a Current Report on Form 8-K with the Commission (i) Immediately disclosing the material terms of the transaction contemplated by this Agreement by the day following the execution and delivery of the last of the Agreements to be so executed and delivered by a Purchaser and (ii) regarding the Closing of the purchase and sale of the Offered Securities, if practicable, on the date of the Closing or the following morning. Notwithstanding the foregoing, the Company shall not publicly disclose the name of the Purchaser, or include the name of the Purchaser in any filing with the Commission or any SRO, without the prior written consent of the Purchaser, except (i) as required by federal securities law and (ii) to the extent such disclosure is required by law or regulations, in which case the Company shall provide the Purchaser with prior notice of such disclosure permitted under sub clause (i) or (ii). Furthermore, the Company covenants and agrees that neither it nor any other Person acting on its behalf will provide the Purchaser or its agents or counsel with any information that the Company believes constitutes material non-public information, unless prior thereto the Purchaser shall have executed a written agreement regarding the confidentiality and use of such information. The Company understands and confirms that the Purchaser shall be relying on the foregoing representations in effecting transactions in securities of the Company.
(b) The Company shall indemnify and hold the Purchaser harmless from and against all fees, commissions or other payments owing by the Company to the Placement Agent or any other person or from acting on behalf of the Company with respect to the offering of the Offered Securities to the Purchaser.
(c) The Company will pay all expenses incidental to the performance of its obligations under this Agreement and the Registration Rights Agreement including all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Underlying Common Stock, the preparation of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowancesRegistration Rights Agreement, and such amendments and supplements thereto, and any other information as the Company deems appropriate and shall furnish a copy document relating to the Representative in accordance with Section 5(vii) issuance, offer, sale and delivery of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to Offered Securities and as applicable the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b)Underlying Common Stock.
(iid) Prior to For the termination of period commencing on the offering of date hereof and ending on the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iii) The Company will advise the Representative promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, and will not effect such amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating to the Notes is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning 90th day after the Closing Effective Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(vii) The Company will furnish to each Underwriter copies of the Registration Statement, the Prospectus Company will not offer, sell, contract to sell, pledge, or otherwise dispose of, directly or indirectly, any Common Stock or any securities which are convertible into, or exercisable for, Common Stock, except for (i) shares of Common Stock issued or issuable pursuant to the Offered Securities, specifically including all shares issuable upon conversion or exchange of, or as dividends on, the Offered Securities, (ii) shares of Common Stock issued or issuable pursuant to the Company’s Series A Convertible Preferred Stock, specifically including all conversion shares and all shares that may be issued as dividends thereon, (iii) shares of Common Stock issued or issuable pursuant to the Company’s Series A-1 Warrants, Series A-2 Warrants and Series A-Agent Warrants, (iv) shares of Common Stock issuable upon the exercise of any options or warrants outstanding on the date of this Agreement, (v) shares of Common Stock issuable pursuant to or upon the conversion of any note, debenture, debt instrument and any preliminary Prospectus Supplement related thereto and all amendments and supplements other written agreement to such documents, in each case as soon as available and in such quantities as each Underwriter may reasonably request.
(viii) The Company will cooperate with each Underwriter in arranging for the qualification of the Notes for sale and the determination of their eligibility for investment under the laws of such jurisdictions as each Underwriter designates and will continue such qualifications in effect so long as required for the distribution of the Notes; provided, however, that which the Company shall not be obligated to qualify to do business in any jurisdiction in which it is not currently so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purpose.
(ix) For a period from party on the date of this Agreement until (vi) shares of Common Stock (including grants, options and warrants) issuable pursuant to or in accordance with any plan for which the retirement Company has filed a registration statement that has been declared effective including, without limitation, the 1994 Stock Plan, the 2005 Stock Plan and the Consultant Compensation Plan, or any other stock plan, option plan or written agreements to which the Company is a party on the date of this Agreement including all modifications and replacements thereof, (vii) shares of Common Stock issuable pursuant to or in accordance with any grants, options, warrants, conversions or otherwise for which the Company has filed a registration statement that has been declared effective and (viii) shares of Common Stock issued or issuable pursuant to the Company’s Series-B-Agent Warrants. (the securities described in sections (i) through (viii) inclusive may sometimes be referred to herein as the “Excluded Securities”). The Company will not at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(2) of the Notes, the Company will furnish Securities Act to cease to be applicable to the Underwriters copies offer and sale of the annual statements of compliance delivered Offered Securities and the Underlying Common Stock to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectivelyPurchaser hereunder.
(x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably request.
(a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xiie) The Company will file with shall use the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to net proceeds received from the Company by each sale of the Underwriters and identified by each Offered Securities solely for working capital, including the development of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereoftechnology.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative CSFBC promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement without the RepresentativeCSFBC's consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Purchasers, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify CSFBC of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither CSFBC's consent to, nor the Purchasers' delivery to offerees or an investors of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 6. The prior notice and approval provisions of this Section 5(a) will not apply to any Exchange Act filings by Dominion Resources, Inc. or Peoples Energy Corporation; provided, however, that the prior notice and approval provisions of this Section 5(a) will apply to any Exchange Act filings by Dominion Resources, Inc. or Peoples Energy Corporation that purport to correct an untrue statement of a material fact in the Offering Document or an omission to state any material fact necessary in order to make the statements in the Offering Document, in the light of the circumstantces under which will effect such compliancethey were made, not misleading.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter CSFBC copies of the Registration Statement, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements thereto in such quantities as CSFBC reasonably requests, and the Company will furnish to CSFBC three copies of the Offering Document signed by a duly authorized officer of the Company, one of which will include the independent accountants' reports therein manually signed by such documentsindependent accountants, in each case as soon soon as available available, but in any event on or before the Closing Date. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to CSFBC (and, upon request, to each of the other Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such quantities as each Underwriter may reasonably requestholders of the Offered Securities.
(viiic) The Company will cooperate with each Underwriter in arranging take such action as the Purchasers may reasonably request for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter CSFBC designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedOffered Securities by the Purchasers, however, provided that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposestate.
(ixd) For a During the period from the date of this Agreement until the retirement of the Notes, ten years hereafter the Company will furnish to the Underwriters copies CSFBC and, upon request, to each of the annual other Purchasers (i) as soon as available, but in any event within the time periods specified in the Indenture, a copy of each balance sheet (audited or unaudited) of the Company, with related statements of compliance delivered income and capital and statements of cash flows required to be furnished to the Indenture Trustee under the Indenture, (ii) all certificates of authorized officers of the Company and all other information and notices sent by the Company to the Trustee pursuant to Section 3.09 section 4.1 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (Ciii) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you CSFBC may reasonably request.
(ae) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts will, upon request, furnish to be marked to show the Trust's absolute ownership CSFBC, each of the related Prefunded Contracts other Purchasers and shall cause any holder of Offered Securities a copy of the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Offered Securities.
(f) During the period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and two years after the related Prefunding Closing Date, the Company shall will not, and shall instruct will not permit any of its affiliates (as defined in Rule 144 under the Servicer not Securities Act) to, take resell any action inconsistent with of the Trust's ownership Offered Securities that have been reacquired by any of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreementthem.
(xiig) During the period of two years after the Closing Date, the Company will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(h) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided pay all expenses incidental to the Company by each performance of its obligations under this Agreement, the Underwriters Indenture, the other Financing Documents and identified by each of them as such the Registration Rights Agreement, including (i) no later than the date that fees and expenses of the Prospectus Supplement is filed with respect to "computational materials" Trustee and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or its professional advisers; (ii) no later than two days following their date the fees and expenses of first use counsel for the Purchasers and the fees and expenses of the Independent Engineer, the Market Consultant, the Fuel Consultant, the Insurance Consultant and the Environmental Consultant; (iii) all expenses in connection with respect to "collateral term sheets" the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Securities (as such term is interpreted defined in the No-Action LettersRegistration Rights Agreement), the preparation and printing of this Agreement, the Offered Securities, the Indenture, the other Financing Documents, the Registration Rights Agreement, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and as applicable, the Exchange Securities; provided, however, that prior (iv) any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities or the Exchange Securities for sale under the laws of such jurisdictions in the United States and Canada as CSFBC designates and the printing of memoranda relating thereto; (v) any fees charged by investment rating agencies for the rating of the Offered Securities or the Exchange Securities; and (vi) expenses incurred in distributing preliminary offering circulars and the Offering Document (including any amendments and supplements thereto) to such filing the Purchasers. The Company will also pay or reimburse the Purchasers (to the extent incurred by them) for all travel expenses of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by Purchasers and the Company, each 's officers and employees and any other expenses of the Underwriters must comply with their obligations pursuant to Section 4 Purchasers and the Company must receive a letter in connection with attending or hosting meetings with prospective purchasers of the Offered Securities from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereofPurchasers.
(xiiii) The In connection with the offering, until CSFBC shall have notified the Company and the other Purchasers of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it nor any of its affiliates will cause Xxxxxxx Xxxxx LLP to deliver to make bids or purchases for the Underwriters on purpose of creating actual, or before apparent, active trading in, or of raising the Prefunding Closing Dateprice of, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsOffered Securities.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative CSFB promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the Representative's CSFB’s consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Purchasers, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any such time to amend or supplement the Prospectus Offering Document to comply with the Actany applicable law, the Company promptly will prepare notify CSFB of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission or an effect such compliance. Neither CSFB’s consent to, nor the Purchasers’ delivery to offerees or investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter CSFB copies of the Registration Statementany preliminary offering circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as each Underwriter may reasonably requestCSFB requests, and the Company will furnish to CSFB on the date hereof one copy of the Offering Document signed by a duly authorized officer of the Company. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act and is not exempt from reporting pursuant to Rule 12g3-2(b) under the Exchange Act, the Company will promptly furnish or cause to be furnished to CSFB and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter CSFB designates and will continue such qualifications in effect so long as required for the distribution resale of the NotesOffered Securities by the Purchasers, provided that the Company will not be required to qualify as a foreign corporation or to file a general consent to service of process in any such state.
(d) During the period of two years after the later of the First Closing Date and the last Optional Closing Date, the Company will, upon request, furnish to CSFB, each of the other Purchasers and any holder of Offered Securities a copy of the restrictions on transfer applicable to the Offered Securities.
(e) During the period of two years after the later of the First Closing Date and the last Optional Closing Date, the Company will not, and will not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Offered Securities that have been reacquired by any of them; provided, however, that this covenant shall not apply to any of the Offered Securities that have been reacquired by any of the affiliates of the Company shall and that are sold by any of them pursuant to an effective Registration Statement.
(f) During the period of two years after the later of the First Closing Date and the last Optional Closing Date, the Company will not be obligated or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to qualify be registered under Section 8 of the Investment Company Act.
(g) The Company will pay all expenses (together with VAT where applicable) incidental to do business the performance of its obligations under this Agreement, the Indenture and the Registration Rights Agreement, including (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Securities (as defined in the Registration Rights Agreement), the preparation and printing of this Agreement, the Registration Rights Agreement, the Offered Securities, the Indenture, the Offering Document and amendments and supplements thereto, and any jurisdiction other document relating to the issuance, offer, sale and delivery of the Offered Securities and as applicable, the Exchange Securities; (iii) the cost of qualifying the Offered Securities for trading in The PortalSM Market (“PORTAL”) and any expenses incidental thereto; (iv) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities; (v) for any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities for sale under the laws of such jurisdictions in the United States and Canada as CSFB designates and the printing of memoranda relating thereto, and (vi) for expenses incurred in distributing preliminary offering circulars and the Offering Document (including any amendments and supplements thereto) to the Purchasers, except that CSFB shall reimburse the Company, up to 0.25% of the gross proceeds of the Offered Securities, for reasonable out of pocket expenses incurred by the Company as set forth above. It being understood, however, that except as provided in this Section 5, each Purchaser will pay all of its costs and expenses, including fees and disbursements of counsel in connection with any offers it may make.
(h) In connection with the offering, until CSFB shall have notified the Company and the other Purchasers of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or will, either alone or with one or more other persons, bid for or purchase for any account in which it is or any of its affiliates has a beneficial interest any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it 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 Offered Securities.
(i) For a period of 90 days after the date of the initial offering of the Offered Securities by the Purchasers, the Company will not currently so qualified offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Securities Act relating to, any United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue, or any ordinary shares, par value U.S.$0.133 per share, of the Company (“Ordinary Shares”) or securities convertible into or exchangeable or exercisable for Ordinary Shares or warrants or other rights to take purchase Ordinary Shares, or publicly disclose the intention to make any action which would subject it to general such offer, sale, pledge, disposition or unlimited service filing, without the prior written consent of process in any jurisdiction where it is not now so subjectCSFB. The Company will promptly advise foregoing sentence shall not apply to (A) the Underwriters sale or conversion of Offered Securities under this Agreement, (B) the receipt issuance by the Company of any notification with respect to Ordinary Shares upon the suspension exercise of an option or warrant or the qualification conversion of the Notes for sale a security, in any jurisdiction or the initiation or threat of any proceeding for such purpose.
(ix) For a period from each case, outstanding on the date of this Agreement until the retirement of the Notes, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicablehereof, (AC) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, grant by the Company with the Commission pursuant of options to the Exchange Actdirectors, any order employees, consultants or other service providers of the Commission thereunder Company or its Subsidiaries pursuant to a "no-action" letter from plan in effect on the staff of the Commission and date hereof, (CD) from time any Ordinary Shares or other rights to time, such other information in the possession acquire capital stock of the Company concerning issued pursuant to equipment financing, lease financing or working capital financing activities entered into in the Trust and ordinary course of business, or (E) any Ordinary Shares or other information concerning rights to acquire capital stock of the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably request.
(a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent issued in connection with the Trust's ownership acquisition of such Funded Contractscomplementary businesses or technologies by merger or acquisition or in connection with partnering, other than as permitted by the Indenture and the Trust Agreement.
(b) On license or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters)similar transactions; provided, however, that prior that, in the case of (D) and (E), any person acquiring any Ordinary Shares or other rights to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each acquire capital stock of the Underwriters must comply with their obligations pursuant Company is otherwise subject to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company similar lock-up agreement for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material90 days. The Company shall file will not at any corrected ABS Term Sheets described in time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(vi4(2) as soon as practicable following receipt thereofof the Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the offer and sale of the Offered Securities.
(xiiij) The Company will cause Xxxxxxx Xxxxx LLP indemnify and hold harmless the Purchasers against any documentary, stamp or similar issuance tax, including any interest and penalties, on the creation, issuance and sale of the Offered Securities and on the execution and delivery of this Agreement. All payments to deliver be made by the Company hereunder shall be made without withholding or deduction for or on account of any present or future taxes, duties or governmental charges whatsoever within the Cayman Islands, Hong Kong or the PRC unless the Company is compelled by law to the Underwriters on deduct or before the Prefunding Closing Datewithhold such taxes, duties or charges. In that event, the opinions required to Company shall pay such additional amounts as may be furnished pursuant to Section 2.01(j) of necessary in order that the Servicing Agreement, addressed to net amounts received after such withholding or deduction shall equal the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contractsamounts that would have been received if no withholding or deduction had been made.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Sina Corp)
Certain Agreements of the Company. The Company Each of the Issuers, jointly and severally, agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative CSFBC promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the RepresentativeCSFBC's consent, which consent will shall not be unreasonably be withheldwithheld or delayed. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Purchasers, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify CSFBC of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission or an effect such compliance. Neither CSFBC's consent to, nor the Purchasers' delivery of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter CSFBC copies of the Registration Statementany preliminary offering circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as CSFBC reasonably requests. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to CSFBC (and, upon request, to each Underwriter may reasonably requestof the other Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as each Underwriter CSFBC reasonably designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; provided, however, that the Company shall not be obligated to qualify to do business in any jurisdiction in which it is not currently so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt Offered Securities by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposePurchasers.
(ixd) For a During the period from the date of this Agreement until the retirement of the Notestwo years hereafter, the Company will furnish to the Underwriters copies CSFBC and, upon request, to each of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreementother Purchasers, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such statements year; and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you CSFBC and, upon request, to each of the other Purchasers as soon as practicableavailable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by a copy of each report and any definitive proxy statement of the Company filed with the Commission pursuant to under the Exchange Act, any order of the Commission thereunder or pursuant mailed to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably requeststockholders.
(ae) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for will, upon request, furnish to CSFBC and the related Prefunded Contracts to be marked to show the Trust's absolute ownership other Purchaser and any holder of Offered Securities a copy of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Offered Securities.
(f) During the period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and two years after the related Prefunding Closing Date, the Company shall will not, and shall instruct will not permit any of its affiliates (as defined in Rule 144 under the Servicer not Securities Act) to, take resell any action inconsistent with of the Trust's ownership Offered Securities that have been reacquired by any of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreementthem.
(xiig) During the period of two years after the Closing Date, each of the Issuers will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(h) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided pay all expenses incidental to the Company by each performance of its obligations under this Agreement and the Underwriters and identified by each of them as such Indenture, including (i) no later than the date that fees and expenses of the Prospectus Supplement is filed with respect to "computational materials" Trustee and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or its professional advisers; (ii) no later than two days following their date of first use all expenses in connection with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); providedexecution, howeverissue, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Companyauthentication, each packaging and initial delivery of the Underwriters must comply with their obligations pursuant to Section 4 Offered Securities, the preparation and printing of this Agreement, the Company must receive a letter from Xxxxx Xxxxxxxx LLPIndenture, certified public accountantsthe Offered Securities, satisfactory in form the Offering Document and substance amendments and supplements thereto, and any other document relating to the Companyissuance, to offer, sale and delivery of the effect that such accountants have performed certain specified procedures, all Offered Securities; (iii) the cost of which have been agreed to by listing the Company, as a result Offered Securities and qualifying the Offered Securities for trading in The PortalSM Market ("PORTAL") and any expenses incidental thereto; (iv) the cost of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed any advertising approved by the Company in connection with the issue of the Offered Securities; (v) for any expenses (including reasonable fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities for sale under the laws of such jurisdictions as CSFBC designates and the printing of memoranda relating thereto; (vi) for any fees charged by investment rating agencies for the rating of the Securities; and (vii) for expenses incurred in distributing preliminary offering circulars and the Offering Document (including any amendments and supplements thereto) to be materialthe Purchasers. The Company shall file will also pay for any corrected ABS Term Sheets described travel expenses of the Company's officers and employees and any other expenses of the Company in Section 4(vi) as soon as practicable following receipt thereofconnection with attending or hosting meetings with prospective purchasers of the Offered Securities.
(xiiii) The In connection with the offering, until CSFBC shall have notified the Company and the other Purchasers of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it nor any of its affiliates will cause Xxxxxxx Xxxxx LLP make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Offered Securities.
(j) During the period beginning on the date hereof and continuing to deliver to and including the Underwriters on or before the Prefunding Closing Date, none of the opinions required Issuers will offer, sell, contract to be furnished pursuant sell, announce their intention to sell, pledge or otherwise dispose of, directly or indirectly, any United States dollar- or Deutsche Xxxx- denominated debt securities issued or guaranteed by any of the Issuers and having a maturity of more than one year from the date of issue. None of the Issuers will at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 2.01(j4(2) of the Servicing Agreement, addressed Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the Underwriters, with respect to the transfer offer and sale of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsOffered Securities.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Terex Corp)
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(ia) Immediately Subject to the provisions of the following the execution of this Agreementsentence, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iii) The Company will advise the Representative CSFB promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the Representative's CSFB’s consent, which consent will not be unreasonably be withheldwithheld or delayed. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Purchasers, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify CSFB of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither CSFB’s consent to, nor the Purchasers’ delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter CSFB copies of the Registration Statementany preliminary offering circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as CSFB requests, and the Company will furnish to CSFB on the date hereof three copies of the Offering Document signed by a duly authorized officer of the Company, one of which will include the independent accountants’ reports therein manually signed by such independent accountants. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to CSFB (and, upon request, to each Underwriter may reasonably requestof the other Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter CSFB designates and will continue such qualifications in effect so long as required for the distribution resale of the NotesOffered Securities by the Purchasers, provided that the Company will not be required to qualify as a foreign corporation or to file a general consent to service of process in any such state or subject itself to taxation in any such jurisdiction if not otherwise so subject.
(d) During the two years after the Closing Date, the Company will, upon request, furnish to CSFB, each of the other Purchasers and any holder of Offered Securities a copy of the restrictions on transfer applicable to the Offered Securities.
(e) Until the earlier of two years after the Closing Date and the date on which there are no remaining Transfer Restricted Securities, the Company will not, and will not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Offered Securities that have been reacquired by any of them.
(f) During the two years after the Closing Date, the Company will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(g) The Company will pay all expenses incidental to the performance of its obligations under this Agreement, the Indenture and the Registration Rights Agreement, including (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses (other than the fees and expenses of counsel for the Purchasers) in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Securities, the preparation and printing of this Agreement, the Registration Rights Agreement, the Offered Securities, the Indenture, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and as applicable, the Exchange Securities; (iii) the cost of listing the Offered Securities and qualifying the Offered Securities for trading in The PortalSM Market (“PORTAL”) and any expenses incidental thereto; (iv) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities, (v) for any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities or the Exchange Securities for sale under the laws of such jurisdictions in the United States and Canada as CSFB designates and the printing of memoranda relating thereto, (vi) for any fees charged by investment rating agencies for the rating of the Securities or the Exchange Securities, and (vii) for expenses incurred in distributing preliminary offering circulars and the Offering Document (including any amendments and supplements thereto) to the Purchasers. The Company will also pay or reimburse the Purchasers (to the extent incurred by them) for one-half of all travel expenses of the Purchasers and the Company’s officers and employees and any other expenses of the Purchasers and the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities from the Purchasers.
(h) In connection with the offering, until CSFB shall have notified the Company and the other Purchasers of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it 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 Offered Securities.
(i) For a period of 90 days after the date of the initial offering of the Offered Securities by the Purchasers, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to, any United States dollar-denominated debt securities issued or guaranteed by the Company or the Guarantors and having a maturity of more than one year from the date of issue, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of CSFB; provided, however, that the Company foregoing shall not be obligated prohibit the Company from entering into the new credit facilities described in the Offering Document, interest rate swaps, collars or other hedging transactions relating to qualify to do business in any jurisdiction in which it is not currently so qualified its other long-term debt or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now so subjectsale-leaseback transactions. The Company will promptly advise the Underwriters of the receipt by the Company of not at any notification with respect time offer, sell, contract to the suspension sell, pledge or the qualification of the Notes for sale in any jurisdiction otherwise dispose of, directly or the initiation or threat of any proceeding for such purpose.
(ix) For a period from the date of this Agreement until the retirement of the Notes, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Actindirectly, any order of the Commission thereunder securities under circumstances where such offer, sale, pledge, contract or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably request.
(a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall disposition would cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted exemption afforded by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j4(2) of the Servicing Agreement, addressed Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the Underwriters, with respect to the transfer offer and sale of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsOffered Securities.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Kangaroo Inc)
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(ia) Immediately following If at any time prior to the execution completion of this Agreementthe resale of the Offered Securities by the Purchasers, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iii) The Company will advise the Representative CSFBC promptly of any proposal to amend or supplement the Registration Statement as filed or the ProspectusOffering Document, and will not effect furnish CSFBC with copies of any such amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly in a reasonable amount of any request by the Commission for any amendment of or supplement time prior to the Registration Statement or the Prospectus or for any additional information its use and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent reflect in such document such comments as the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) Purchasers or their counsel may reasonably propose. If, at any time when a Prospectus relating prior to the Notes is required completion of the resale of the Offered Securities by the Purchasers and prior to be delivered under the ActExchange Offer, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify CSFBC of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither CSFBC's consent to, nor the Purchasers' delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter CSFBC copies of the Registration Statementany preliminary offering circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as CSFBC requests, and the Company will furnish to CSFBC on the date hereof three copies of the Offering Document signed by a duly authorized officer of the Company. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to CSFBC (and, upon request, to each Underwriter may reasonably requestof the other Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate endeavor, in cooperation with each Underwriter in arranging the Purchasers and their counsel, to qualify the Offered Securities for the qualification of the Notes for offering and sale and the determination of to determine their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter CSFBC designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedOffered Securities by the Purchasers, however, provided that neither the Company shall not nor any of the Subsidiaries Guarantors will be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposejurisdiction.
(ixd) For a During the period from the date of this Agreement until the retirement of the Notesthree years hereafter, the Company will furnish to the Underwriters copies CSFBC and, upon request, to each of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreementother Purchasers, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such statements year; and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you CSFBC and, upon request, to each of the other Purchasers (i) as soon as practicableavailable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by a copy of each report and any definitive proxy statement of the Company filed with the Commission pursuant to under the Exchange ActAct or mailed to stockholders, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (Cii) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you CSFBC may reasonably request.
(ae) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts will, upon request, furnish to be marked to show the Trust's absolute ownership CSFBC, each of the related Prefunded Contracts other Purchasers and shall cause any holder of Offered Securities a copy of the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Offered Securities.
(f) During the period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and two years after the related Prefunding Closing Date, the Company shall will not, and shall instruct will not permit any of its affiliates (as defined in Rule 144 under the Servicer not Securities Act) to, take resell any action inconsistent with of the Trust's ownership Offered Securities that have been reacquired by any of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreementthem.
(xiig) During the period of two years after Closing Date, neither the Company nor any Subsidiary Guarantor will be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(h) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided pay all expenses incidental to the Company by each performance of its obligations under the Underwriters and identified by each of them as such Operative Documents, including (i) no later than the date that fees and expenses of the Prospectus Supplement is filed with respect to "computational materials" Trustee and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or its professional advisers; (ii) no later than two days following their date all expenses in connection with the execution, issue, authentication, packaging and initial delivery of first use with respect to "collateral term sheets" the Offered Securities and the Exchange Securities (as such term is interpreted defined in the No-Action LettersRegistration Rights Agreement), the preparation and printing of the Operative Documents and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and the Exchange Securities; (iii) any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities or the Exchange Securities for sale under the laws of such jurisdictions in the United States and Canada as CSFBC designates and the printing of memoranda relating thereto; (iv) for any fees charged by investment rating agencies for the rating of the Offered Securities or the Exchange Securities; (v) for expenses incurred in distributing preliminary offering circulars and the Offering Document (including any amendments and supplements thereto) to the Purchasers; and (vi) any costs associated with the deposit of the Global Security with, or on behalf of, DTC; provided, however, that prior CSFBC agrees to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to reimburse the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement costs incurred in connection with any "Bloomberg Roadshow" and (ii) on up to $15,000 of the costs and expenses of Elizxxxxx Xxxxxxx xxxurred in connection with the preparation of any rating agency presentations. The Company will also pay or before each Prefunding Transfer Datereimburse the Purchasers (to the extent incurred by them) for all travel expenses of the Purchasers and the Company's officers and employees and any other expenses of the Purchasers and the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities from the Purchasers.
(i) In connection with the offering, until CSFBC shall have notified the Company and the other Purchasers of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it 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 Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing AgreementOffered Securities.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative CSFB promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the Representative's consent, which CSFB’s consent will (such consent not to be unreasonably be withheld). The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Purchasers, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify CSFB of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither CSFB’s consent to, nor the Purchasers’ delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter CSFB copies of the Registration Statementany Preliminary Offering Circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as CSFB requests, and the Company will furnish to CSFB on the date hereof three copies of the Offering Document. At any time when the Company has not filed the reports required by Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to CSFB (and, upon request, to each Underwriter may reasonably requestof the other Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and prospective purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter CSFB designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedOffered Securities by the Purchasers, however, provided that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposestate.
(ixd) For a During the period from the date of this Agreement until the retirement of the Notes, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably request.
(a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts will, upon request, furnish to be marked to show the Trust's absolute ownership CSFB, each of the related Prefunded Contracts other Purchasers and shall cause any holder of Offered Securities a copy of the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Offered Securities.
(e) During the period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and two years after the related Prefunding Closing Date, the Company shall will not, and shall instruct will not permit any of its affiliates (as defined in Rule 144 under the Servicer not Securities Act) to, take resell any action inconsistent with of the Trust's ownership Offered Securities that have been reacquired by any of such Prefunded Contractsthem.
(f) During the period of two years after the Closing Date, other than as permitted by the Company will not be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(g) The Company will pay all expenses incidental to the performance of its and the Guarantors’ obligations under this Agreement, the Indenture and the Trust Registration Rights Agreement, including (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Securities, the preparation and printing of this Agreement, the Registration Rights Agreement, the Offered Securities, the Indenture, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and as applicable, the Exchange Securities; (iii) the cost of listing the Offered Securities and qualifying the Offered Securities for trading in The PortalSM Market (“PORTAL”) and any expenses incidental thereto; (iv) the cost of any advertising approved by the Company in connection with the issuance of the Offered Securities; (v) any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities or the Exchange Securities for sale under the laws of such jurisdictions in the United States and Canada as CSFB designates and the printing of memoranda relating thereto; (vi) any fees charged by investment rating agencies for the rating of the Company, the Offered Securities or the Exchange Securities, and (vii) expenses incurred in distributing preliminary offering circulars and the Offering Document (including any amendments and supplements thereto) to the Purchasers. The Company will also pay or reimburse the Purchasers (to the extent incurred by them) for one-half of the costs of the plane used in connection with, and all other travel expenses (other than the cost of hotel rooms rented by the Purchasers) of the Purchasers and the Company’s and the Guarantors’ officers and employees and any other expenses of the Purchasers and the Company and any of the Guarantors in connection with, attending or hosting meetings with prospective purchasers of the Offered Securities from the Purchasers.
(xiih) The In connection with the offering of the Offered Securities, until CSFB shall have notified the Company and the other Purchasers of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and the Company it 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 Offered Securities.
(i) Except as contemplated by the Registration Rights Agreement, for a period of 90 days after the date of the initial offering of the Offered Securities by the Purchasers, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission as part of a current report on Form 8registration statement under the Securities Act relating to, any United States dollar-K each ABS Term Sheet provided to the Company by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) denominated debt securities issued or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed guaranteed by the Company and having a maturity of more than one year from the date of issue, or publicly disclose the intention to be materialmake any such offer, sale, pledge, disposition or filing, without the prior written consent of CSFB. The Company shall file will not at any corrected ABS Term Sheets described in time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j4(2) of the Servicing Agreement, addressed Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the Underwriters, with respect to the transfer offer and sale of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsOffered Securities.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Gold Kist Inc)
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative CSFBC promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the RepresentativeCSFBC's consent, which consent will shall not be unreasonably be withheldwithheld or delayed. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Purchasers, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any such time to amend or supplement the Prospectus Offering Document to comply with the Actany applicable law, the Company promptly will prepare notify CSFBC of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission or an effect such compliance. Neither CSFBC's consent to, nor the Purchaser's delivery to offerees or investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter CSFBC copies of the Registration Statementany preliminary offering circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as CSFBC requests, and the Company will furnish to CSFBC on the Closing Date three copies of the Offering Document signed on the cover page by a duly authorized officer of the Company, one of which will include the independent accountants' reports therein manually signed by such independent accountants. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to CSFBC (and upon request, to each Underwriter may reasonably requestother Purchaser) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging use its commercially reasonable efforts to arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter CSFBC designates and will continue such qualifications in effect so long as required for the distribution resale of the NotesOffered Securities by the Purchasers; provided, however, that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any such state or jurisdiction where if it is not now otherwise required to be so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect qualified or to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposeso file.
(ixd) For a During the period from of five years after the date of this Agreement until the retirement of the NotesClosing Date, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered CSFBC and, upon request, to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreementeach other Purchaser, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any end of each fiscal year, a copy of the Notes are outstanding, the Company will furnish Company's annual report to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, stockholders for such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably request.
(a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters)year; provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative CSFBC promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the RepresentativeCSFBC's consent, which consent will shall not be unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Purchasers, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify CSFBC of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither CSFBC's consent to, nor the Purchasers' delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter CSFBC copies of the Registration Statementany preliminary offering circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as each Underwriter may CSFBC reasonably request.
(viiirequests, one of which will include the independent accountants' reports therein manually signed by such independent accountants. At any time when the Company is not subject to Section 13 or 15(d) The Company will cooperate with each Underwriter in arranging for the qualification of the Notes for sale and the determination of their eligibility for investment under the laws of such jurisdictions as each Underwriter designates and will continue such qualifications in effect so long as required for the distribution of the Notes; provided, however, that the Company shall not be obligated to qualify to do business in any jurisdiction in which it is not currently so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purpose.
(ix) For a period from the date of this Agreement until the retirement of the NotesExchange Act, the Company will promptly furnish or cause to be furnished to CSFBC (and, upon request, to each of the Underwriters other Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably request.
(a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant delivered to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.holders and
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will promptly advise the Representative promptly CSFBC of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the RepresentativeCSFBC's consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Purchasers, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any such time to amend or supplement the Prospectus Offering Document to comply with the Actany applicable law, the Company will promptly notify CSFBC of such event and will prepare and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly prepare, at its own expense, an amendment or supplement which will correct such statement or omission or an to effect such compliance. Neither CSFBC's consent to, nor the Purchasers' delivery to offerees or investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter CSFBC copies of the Registration Statement, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as CSFBC requests, and the Company will furnish to CSFBC on the date hereof three copies of the Offering Document, one of which will include the independent accountants' reports therein manually signed by such independent accountants. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to CSFBC (and, upon request, to each Underwriter may reasonably requestof the other Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter CSFBC designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedOffered Securities by the Purchasers, however, provided that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposejurisdiction.
(ixd) For a During the period from the date of this Agreement until the retirement of the Notesfive years hereafter, the Company will furnish to the Underwriters copies CSFBC and, upon request, to each of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreementother Purchasers, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such statements year; and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you CSFBC and, upon request, to each of the other Purchasers (i) as soon as practicableavailable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by a copy of each report and any definitive proxy statement of the Company filed with the Commission pursuant to under the Exchange ActAct or mailed to stockholders, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (Cii) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you CSFBC may reasonably request, which such other information shall be kept confidential by the Purchasers to the extent requested by the Company in writing at the time of delivery of such information; provided that CSFBC and such other Purchasers shall have no such obligation with respect to any such information which (i) prior to delivery to the Purchasers was already in their possession, (ii) is or becomes otherwise publicly available, without breach of this provision, (iii) becomes available to the Purchasers on a non-confidential basis from a source other than the Company, provided that, after reasonable inquiry, the Purchasers do not know that such source is bound by a confidentiality agreement with, or obligation of secrecy to, the Company or (iv) the Purchasers are legally compelled to disclose such information.
(ae) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts will, upon request, furnish to be marked to show the Trust's absolute ownership CSFBC, each of the related Prefunded Contracts other Purchasers and shall cause any holder of Offered Securities a copy of the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Offered Securities.
(f) During the period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and two years after the related Prefunding Closing Date, the Company shall will not, and shall instruct will not permit any of its affiliates (as defined in Rule 144 under the Servicer not Securities Act) to, take resell any action inconsistent with of the Trust's ownership Offered Securities that have been reacquired by any of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreementthem.
(xiig) During the period of two years after the Closing Date, neither the Company nor any Guarantor will be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(h) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided pay all expenses incidental to the Company by each performance of its obligations under this Purchase Agreement, the Underwriters Indenture, and identified by each of them as such the Registration Rights Agreement, including (i) no later than the date that fees and expenses of the Prospectus Supplement is filed with respect to "computational materials" Trustee and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or its professional advisers; (ii) no later than two days following their date all expenses in connection with the execution, issue, authentication, packaging and initial delivery of first use the Offered Securities and, as applicable, the Exchange Securities, the preparation and printing of this Purchase Agreement, the Registration Rights Agreement, the Offered Securities, the Indenture, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and as applicable, the Exchange Securities; (iii) the cost of listing the Offered Securities and qualifying the Offered Securities for trading in The PortalSM Market ("PORTAL") and any expenses incidental thereto; (iv) the cost of any advertising approved by the Company in connection with respect to "collateral term sheets" the issue of the Offered Securities; (as v) for any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities or the Exchange Securities for sale under the laws of such term is interpreted jurisdictions in the No-Action Letters)United States and Canada as CSFBC designates and the printing of memoranda relating thereto; provided, however, that prior (vi) for any fees charged by investment rating agencies for the rating of the Offered Securities or the Exchange Securities; and (vii) for expenses incurred in distributing preliminary offering circulars and the Offering Document (including any amendments and supplements thereto) to such filing the Purchasers. The Company will also pay or reimburse the Purchasers (to the extent incurred by them) for all travel expenses of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by Purchasers and the Company, each 's officers and employees and any other expenses of the Underwriters must comply with their obligations pursuant to Section 4 Purchasers and the Company must receive in connection with attending or hosting meetings with prospective purchasers of the Offered Securities from the Purchasers.
(i) In connection with the offering, until CSFBC shall have notified the Company and the other Purchasers of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 letter from Xxxxx Xxxxxxxx LLPbeneficial interest any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it nor any of its affiliates will make bids or purchases for the purpose of creating actual, certified public accountantsor apparent, satisfactory in form and substance to active trading in, or of raising the Companyprice of, to the effect that such accountants have performed certain specified procedures, all Offered Securities.
(j) For a period of which have been agreed to 180 days after the date of the initial offering of the Offered Securities by the CompanyPurchasers, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any United States dollar-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed denominated debt securities or Euro-denominated debt securities issued or guaranteed by the Company to be materialand having a maturity of more than one year from the date of issue. The Company shall file will not at any corrected ABS Term Sheets described in time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j4(2) of the Servicing Agreement, addressed Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the Underwriters, with respect to the transfer offer and sale of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsOffered Securities.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Medical Documenting Systems Inc)
Certain Agreements of the Company. The Company agrees and the Guarantors, jointly and severally, agree with the Underwriters Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will promptly advise the Representative promptly of any proposal to amend or supplement the Registration Statement as filed Preliminary Offering Memorandum, the Final Offering Memorandum, the General Disclosure Package or the Prospectus, any Supplemental Marketing Material and will not effect such amendment or supplement without the Representative's ’s consent, which such consent will not to be unreasonably be withheld. The Company will also advise the Representative promptly of any request timely file all reports required to be filed by the Commission for any amendment of or supplement Company pursuant to the Registration Statement or the Prospectus or for any additional information Section 13(a), 13(c) and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and 15(d) of the issuance Exchange Act for so long as deliveries of an offering memorandum are being made by the Commission of any stop order suspending Purchasers in connection with the effectiveness offering or sale of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) Securities. If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Securities by the Purchasers, any there occurs an event occurs or development as a result of which any document included in the Prospectus as then amended Preliminary Offering Memorandum or supplemented the Final Offering Memorandum, the General Disclosure Package or any Supplemental Marketing Material, if republished immediately following such event or development, included or would include an untrue statement of a material fact or omitted or would 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, not misleading, or if it is otherwise necessary at any time to amend the Prospectus or supplement any such document in order to comply with the Actlaw, the Company promptly will notify the Representative of such event and promptly will prepare and file with the Commission (subject furnish, at its own expense, to the Purchasers and the dealers and to any other dealers at the request of the Representative's prior review pursuant to paragraph (ii) of this Section 5) , an amendment or supplement which will correct such statement or omission omission, or an so that such that such document will comply with applicable law. Neither the Representative’s consent to, nor the Purchasers’ delivery to offerees or investors of, any such amendment or supplement which will effect shall constitute a waiver of any of the conditions set forth in Section 6. The third sentence of this subsection does not apply to statements in or omissions from any document in the Preliminary Offering Memorandum or the Final Offering Memorandum, the General Disclosure Package or any Supplemental Marketing Material made in reliance upon and in conformity with written information furnished to the Company by the Purchasers specifically for use therein, it being understood and agreed that the only such complianceinformation is that described as such in Section 8(b) hereof.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter the Representative copies of the Registration StatementPreliminary Offering Memorandum, each other document comprising a part of the General Disclosure Package, the Prospectus and any preliminary Prospectus Supplement related thereto and Final Offering Memorandum, all amendments and supplements to such documentsdocuments and each item of Supplemental Marketing Material, in each case as soon as available and in such quantities as the Representative reasonably requests. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to the Representative and, upon request, to each Underwriter may reasonably requestof the other Purchasers and, upon request of holders and prospective purchasers of the Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter the Representative designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedSecurities by the Purchasers, however, provided that the Company shall will not be obligated required to qualify as a foreign limited partnership or to do business file a general consent to service of process in any such jurisdiction in which it is not currently so qualified or to take any action which that would subject it itself to general taxation based on income or unlimited service of process revenues in any such jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect currently subject to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposetaxation.
(ixd) For a During the period from of one year after the date of this Agreement until the retirement of the NotesClosing Date, the Company will furnish to the Underwriters copies Representative and, upon request, to each of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreementother Purchasers, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any end of each fiscal year, a copy of the Notes are outstanding, Company’s annual report for such year; and the Company will furnish to you the Representative and, upon request, to each of the other Purchasers as soon as practicableavailable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by a copy of each report and any definitive proxy statement of the Company and of any Guarantor that is a reporting company filed with the Commission pursuant under the Exchange Act or mailed to unitholders. However, so long as the Company timely files reports with the Commission on its Electronic Data Gathering, Analysis and Retrieval system (“XXXXX”) as if the Company were subject to the reporting requirements of either Section 13 or Section 15(d) of the Exchange Act, any order of it is not required to furnish such reports or statements to the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably requestPurchasers.
(ae) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and one year after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for will, upon reasonable request, furnish to the related Prefunded Contracts to be marked to show the Trust's absolute ownership Representative, each of the related Prefunded Contracts other Purchasers and shall cause any holder of Securities a copy of the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Securities.
(f) During the period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and one year after the related Prefunding Closing Date, the Company shall will not, and will not permit any of its Affiliates to, resell any of the Securities that have been reacquired by any of them. Neither the Company nor any Affiliate will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would be integrated with the sale of the Securities in a manner that would require the registration under the Securities Act of (i) the sale of the Securities by the Company and the Guarantors to the Purchasers, (ii) the resale of the Securities by the Purchasers to any subsequent purchasers or (iii) the resale of the Securities by such subsequent purchasers to others.
(g) During the period of one year after the Closing Date, neither the Company nor any of the Guarantors will be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(h) None of the Company, the Guarantors, or their respective Affiliates, or any person acting on their behalf (other than any Purchaser, as to whom the Company and the Guarantors make no representations) will engage in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) in connection with any offer or sale of the Securities in the United States or in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act or engage in any directed selling efforts (as that term is defined in Regulation S) in the United States with respect to the Securities, and the Company, the Guarantors and their respective Affiliates and each person acting on its or their behalf (other than the Purchasers) will comply with the offering restrictions requirement of Regulation S.
(i) The Company will cooperate with the Purchasers and use its best efforts to permit the Securities to be eligible for clearance and settlement through DTC, Euroclear and Clearstream, Luxembourg.
(j) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay all expenses incidental to the performance of its obligations under this Agreement, the Indenture and the Registration Rights Agreement, including but not limited to: (i) the fees and expenses of the Trustee, the collateral agent and any transfer agent, registrar or depositary and their professional advisers for which the Company is responsible; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Securities, including any withholding, stamp, transfer or other similar taxes in connection with the original issuance and sale of Securities, the preparation and printing of this Agreement, the Securities, the Indenture, the Registration Rights Agreement, the Preliminary Offering Memorandum, any other documents comprising any part of the General Disclosure Package, the Final Offering Memorandum, all amendments and supplements thereto, each item of Supplemental Marketing Material and any other document relating to the issuance, offer, sale and delivery of the Securities, including the fees, disbursements and expenses of the Company’s counsel, Company’s accountants and any other advisors to the Company, and any fees in connection with the release of the collateral or a Security Requirement Period (as defined in the Indenture); (iii) the cost of any advertising approved by the Company in connection with the issue of the Securities; (iv) any expenses (including reasonable fees and disbursements of counsel to the Purchasers) incurred in connection with qualification of the Securities for sale under the laws of such jurisdictions in the United States and Canada as the Representative designates and the preparation and printing of memoranda relating thereto; (v) any fees charged by investment rating agencies for the rating of the Securities; (vi) expenses incurred in distributing the Preliminary Offering Memorandum, any other documents comprising any part of the General Disclosure Package, the Final Offering Memorandum (including any amendments and supplements thereto, including any form of electronic distribution) and any Supplemental Marketing Material to the Purchasers; (vii) all reasonable and documented out-of-pocket expenses (other than the fees, expenses and disbursements of counsel to the Purchasers) incurred by the Representative in connection with the transactions contemplated in this Agreement; and (viii) all other reasonable and documented costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. The Company will also pay or reimburse the Representative (to the extent incurred by it) for reasonable, documented, out-of-pocket costs and expenses of the Representative and the Company’s officers and employees relating to investor presentations on any “road show” in connection with the offering and sale of the Securities including, without limitation, any such travel expenses of the Company’s officers and employees and any other expenses of the Company including, subject to prior approval by the Company, 50% of the cost of chartering of airplanes.
(k) The Company will use the net proceeds received in connection with the offering of the Securities in the manner described in the “Use of Proceeds” section of the General Disclosure Package.
(l) In connection with the offering of the Securities, until the Representative shall instruct have notified the Servicer Company of the completion of the resale of the Securities, neither the Company nor any of its Affiliates will, 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 any Securities or attempt to induce any person to purchase any Securities; and neither it 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 Securities.
(m) Until the Closing Date, the Company and the Guarantors will not, directly or indirectly, take any of the following actions with respect to any United States dollar-denominated debt securities issued or guaranteed by the Company or the Guarantors and having a maturity of more than one year from the date of issue or any securities convertible or exchangeable or exercisable for any such securities (“Lock-Up Securities”): (i) offer, sell, issue, contract to sell, pledge or otherwise dispose of Lock-Up Securities, (ii) offer, sell, issue, contract to sell, contract to purchase or grant any option, right or warrant to purchase Lock-Up Securities, (iii) enter into any swap, hedge or any other agreement that transfers, in whole or in part, the economic consequences of ownership of Lock-Up Securities, (iv) establish or increase a put equivalent position or liquidate or decrease a call equivalent position in Lock-Up Securities within the meaning of Section 16 of the Exchange Act or (v) file with the Commission a registration statement under the Securities Act relating to Lock-Up Securities or publicly disclose the intention to take any such action (other than as contemplated by this Agreement and the Registration Rights Agreement or in connection with pre-existing obligations with respect to debt securities issued under the Base Indenture), without the prior written consent of the Representative. The Company and the Guarantors will not toat any time directly or indirectly, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided referred to the Company by each of the Underwriters and identified by each of them as such in clauses (i) no later than the date that the Prospectus Supplement is filed through (v) above with respect to "computational materials" and "structural terms sheets" (as any securities under circumstances where such terms are interpreted in offer, sale, pledge, contract or disposition would cause the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) exemption afforded by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j4(a)(2) of the Servicing Agreement, addressed Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the Underwriters, with respect to the transfer offer and sale of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsSecurities.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Cheniere Energy Partners, L.P.)
Certain Agreements of the Company. The Company agrees with the Underwriters that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iii) The Company will advise the Representative promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, and will not effect such amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating to the Notes is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(vii) The Company will furnish to each Underwriter copies of the Registration Statement, the Prospectus and any preliminary Prospectus Supplement related thereto and all amendments and supplements to such documents, in each case as soon as available and in such quantities as each Underwriter may reasonably request.
(viii) The Company will cooperate with each Underwriter in arranging for the qualification of the Notes for sale and the determination of their eligibility for investment under the laws of such jurisdictions as each Underwriter designates and will continue such qualifications in effect so long as required for the distribution of the Notes; provided, however, that the Company shall not be obligated to qualify to do business in any jurisdiction in which it is not currently so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purpose.
(ix) For a period from the date of this Agreement until the retirement of the Notes, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably request.
(a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each of the Underwriters and identified by each of them as such (i) no later than within the date that the Prospectus Supplement is filed with respect time period allotted for such filing pursuant to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters)Letter; provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLPPricewaterhouseCoopers, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP PricewaterhouseCoopers have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP Andrews & Kurth L.L.P. to deliver to the Underwriters on or before the Prefunding befoxx xxx Prexxxxxng Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP Andrews & Kurth L.L.P. on the Closing Date with respect to the Funded ContractsFxxxxx Xontxxxxx.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Samples: Underwriting Agreement (Onyx Acceptance Financial Corp)
Certain Agreements of the Company. The Company covenants and agrees with the Underwriters thatInitial Purchasers as follows:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iii) The Company will advise the Representative promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, and will not effect such amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(va) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under 90th day following the ActClosing Date, any event occurs involving the Company shall occur as a result of which the Prospectus Final Memorandum (as then amended or supplemented supplemented) would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will immediately notify the Representative on behalf of the Initial Purchasers and prepare and file with the Commission (subject furnish to the Representative's prior review pursuant to paragraph (ii) of this Section 5) Initial Purchasers an amendment or supplement which to the Final Memorandum that will correct such statement or omission omission. The Company will not at any time amend or an supplement the Final Memorandum (i) prior to having furnished the Initial Purchasers with a copy of the proposed form of the amendment or supplement and giving the Initial Purchasers a reasonable opportunity to review the same or (ii) in a manner to which will effect such compliancethe Representative on behalf of the Initial Purchasers or its counsel shall object.
(vib) As soon as practicableDuring the period referred to in Section 6(a), the Company will cause the Trust to make generally available furnish to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(vii) The Company will furnish to each Underwriter Initial Purchasers, without charge, copies of the Registration StatementFinal Memorandum (including all exhibits and documents incorporated by reference therein), the Prospectus and any preliminary Prospectus Supplement related thereto Transaction Documents, and all amendments and or supplements to such documents, in each case as soon as reasonably available and in such quantities as each Underwriter the Initial Purchasers may reasonably from time to time request.
(viiic) The At all times during the course of the private placement contemplated hereby and prior to the Closing Date, (i) the Company will cooperate with make available to each Underwriter offeree the Additional Offering Documents and information concerning any other relevant matters, as they or any of their affiliates possess or can acquire without unreasonable effort or expense, as determined in arranging for good faith by them, (ii) the qualification Company will provide each offeree the opportunity to ask questions of, and receive answers from, them concerning the terms and conditions of the Notes for sale offering and to obtain any additional information, to the determination extent they or any of their eligibility for investment under affiliates possess such information or can acquire it without unreasonable effort or expense (as determined in good faith by them), necessary to verify the laws of such jurisdictions as each Underwriter designates and will continue such qualifications in effect so long as required for the distribution accuracy of the Notes; providedinformation furnished to the offeree, however, that (iii) the Company shall will not be obligated publish or disseminate any material in connection with the offering of the Offered Notes except as contemplated herein or as consented to qualify to do business in any jurisdiction in which it is not currently so qualified or to take any action which would subject it to general or unlimited service by the Representative on behalf of process in any jurisdiction where it is not now so subject. The the Initial Purchasers, (iv) the Company will promptly advise the Underwriters Initial Purchasers promptly of the receipt by the Company of any notification with respect communication from the SEC or any state securities authority concerning the offering or sale of the Offered Notes, (v) the Company will advise the Initial Purchasers promptly of the commencement of any lawsuit or proceeding to which the Company is a party relating to the offering or sale of the Offered Notes, and (vi) the Company will advise the Initial Purchasers of the suspension or of the qualification of the Offered Notes for offering or sale in any jurisdiction jurisdiction, or the initiation or threat of any proceeding procedure for any such purpose.
(ixd) For The Company will furnish, upon the written request of any Noteholder or of any owner of a period from beneficial interest therein, such information as is specified in paragraph (d)(4) of Rule 144A under the date Securities Act (i) to such Noteholder or beneficial owner, (ii) to a prospective purchaser of this Agreement until such Note or interest therein who is a QIB and a Qualified Purchaser designated by such Noteholder or beneficial owner, or (iii) to the retirement Indenture Trustee for delivery to such Noteholder, beneficial owner or prospective purchaser, in order to permit compliance by such Noteholder or beneficial owner with Rule 144A in connection with the resale of such Note or beneficial interest therein by such holder or beneficial owner in reliance on Rule 144A unless, at the time of such request, the Issuer is subject to the reporting requirements of Section 13 or 15(d) of the NotesSecurities Exchange Act of 1934 or is exempt from such reporting requirements pursuant to and in compliance with Rule 12g3-2(b).
(e) Except as otherwise provided in the Indenture, each Offered Note will contain a legend to the effect set forth in the form of Notice to Investors attached as Exhibit A hereto.
(f) In connection with the application to list the Listed Notes on the Irish Stock Exchange, the Company will furnish from time to the Underwriters copies time any and all documents, instruments, information and undertakings and publish all advertisements or other material that may be necessary in order to effect such listing and to maintain such listing until none of the annual statements such Notes is outstanding or until such time as payment of compliance delivered to the Indenture Trustee pursuant to Section 3.09 principal, interest and any additional amounts (if any) in respect of the Indenture and Section 3.10 of the Servicing Agreementall such Notes have been duly provided for, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after whichever is earlier; provided that if such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstandinglisting can no longer be reasonably maintained, the Company will furnish use its best efforts to you as soon as practicable, (A) all documents distributedobtain and maintain the quotation for, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to timelisting of, such Notes on such other information stock exchange or exchanges in the possession of European Union as the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you Initial Purchasers may reasonably request.
(a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative CSFBC promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the RepresentativeCSFBC's consent, which consent will not be unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Purchasers, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify CSFBC of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither CSFBC's consent to, nor the Purchasers' delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter CSFBC copies of the Registration Statementany preliminary offering circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as CSFBC reasonably requests, and the Company will furnish to CSFBC on the date hereof three copies of the Offering Document, one of which will include the independent accountants' reports therein manually signed by such independent accountants. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to CSFBC (and, upon request, to each Underwriter may reasonably requestof the other Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter CSFBC designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedOffered Securities by the Purchasers, however, provided that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposestate.
(ixd) For a During the period from the date of this Agreement until the retirement of the Notesfive years hereafter, the Company will furnish to the Underwriters copies CSFBC and, upon request, to each of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreementother Purchasers, as soon as practicable after the end of each fiscal year, a copy of its annual report to shareholders for such statements year; and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you CSFBC and, upon request, to each of the other Purchasers (i) as soon as practicableavailable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order a copy of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust each report and any other information concerning definitive proxy statement of the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably request.
(a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to under the Company by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.Exchange Act
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative CSFBC promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the RepresentativeCSFBC's consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Purchasers, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify CSFBC of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither CSFBC's consent to, nor the Purchasers' delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter CSFBC copies of the Registration Statementany preliminary offering circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as CSFBC requests. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to CSFBC (and, upon request, to each Underwriter may reasonably requestof the other Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as each Underwriter CSFBC reasonably designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedOffered Securities by the Purchasers, however, provided that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposestate.
(ixd) For a During the period from the date of this Agreement until the retirement of the Notesfive years hereafter, the Company will furnish to the Underwriters copies CSFBC and, upon request, to each of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreementother Purchasers, as soon as reasonably practicable after the end of each fiscal year, a copy of its annual report to stockholders for such statements year; and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you CSFBC and, upon request, to each of the other Purchasers (i) as soon as practicableavailable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by a copy of each report and any definitive proxy statement of the Company filed with the Commission pursuant to under the Exchange ActAct or mailed to stockholders, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (Cii) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you CSFBC may reasonably request.
(ae) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts will, upon request, furnish to be marked to show the Trust's absolute ownership CSFBC each of the related Prefunded Contracts other Purchasers and shall cause any holder of Offered Securities a copy of the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Offered Securities.
(f) During the period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and two years after the related Prefunding Closing Date, the Company shall will not, and shall instruct will not permit any of its affiliates (as defined in Rule 144 under the Servicer not Securities Act) to, take resell any action inconsistent with of the Trust's ownership Offered Securities that have been reacquired by any of such Prefunded Contractsthem.
(g) During the period of two years after the Closing Date, other than as permitted by the Company will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(h) The Company will pay all expenses incidental to the performance of its obligations under this Agreement, the Indenture and the Trust Registration Rights Agreement, including (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Securities, the preparation and printing of this Agreement, the Registration Rights Agreement, the Offered Securities, the Exchange Securities, the Indenture, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and, as applicable, the Exchange Securities; (iii) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities; (iv) for any expenses (including reasonable fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities or the Exchange Securities for sale under the laws of such jurisdictions as CSFBC reasonably designates and the printing of memoranda relating thereto; (v) for any fees charged by investment rating agencies for the rating of the Securities or the Exchange Securities; and (vi) for expenses incurred in distributing preliminary offering circulars and the Offering Document (including any amendments and supplements thereto) to the Purchasers. The Company also will pay or reimburse the Purchasers (to the extent incurred by them) for all travel expenses of the Purchasers and the Company's officers and employees and any other expenses of the Purchasers and the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities from the Purchasers.
(xiii) The Company will file In connection with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to offering, until CSFBC shall have notified the Company by each and the other Purchasers of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each completion of the Underwriters must comply with their obligations pursuant to Section 4 and resale of the Offered Securities, neither the Company must receive nor any of its affiliates has or will, 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 letter from Xxxxx Xxxxxxxx LLPbeneficial interest any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it nor any of its affiliates will make bids or purchases for the purpose of creating actual, certified public accountantsor apparent, satisfactory in form and substance to active trading in, or of raising the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Dateprice of, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsOffered Securities.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Kmart Corp)
Certain Agreements of the Company. The Company agrees with the Underwriters Purchaser that:
(a) In addition to any and all other public statements or disclosures made by the Company in its sole discretion (subject to the last sentence of this Section 5(a)), the Company will issue a press release and file a Current Report on Form 8-K with the Commission (i) Immediately disclosing the material terms of the transaction by the day following the execution and delivery of the last of the Agreements to be so executed and delivered by a Purchaser and (ii) regarding the Closing of the purchase and sale of the Offered Securities, if practicable, on the date of the Closing or the following morning. Notwithstanding the foregoing, the Company shall not publicly disclose the name of the Purchaser, or include the name of the Purchaser in any filing with the Commission or any SRO, without the prior written consent of the Purchaser, except (i) as required by federal securities law and (ii) to the extent such disclosure is required by law or regulations, in which case the Company shall provide the Purchaser with prior notice of such disclosure permitted under sub clause (i) or (ii). Furthermore, the Company covenants and agrees that neither it nor any other Person acting on its behalf will provide the Purchaser or its agents or counsel with any information that the Company believes constitutes material non-public information, unless prior thereto the Purchaser shall have executed a written agreement regarding the confidentiality and use of such information. The Company understands and confirms that the Purchaser shall be relying on the foregoing representations in effecting transactions in securities of the Company.
(b) The Company shall indemnify and hold the Purchaser harmless from and against all fees, commissions or other payments owing by the Company to the Placement Agent or any other person or from acting on behalf of the Company with respect to the Offering.
(c) The Company will pay all expenses incidental to the performance of its obligations under this Agreement and the Registration Rights Agreement including all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Underlying Common Stock, the preparation of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowancesRegistration Rights Agreement, and such amendments and supplements thereto, and any other information as the Company deems appropriate and shall furnish a copy document relating to the Representative in accordance with Section 5(vii) issuance, offer, sale and delivery of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to Offered Securities and as applicable the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b)Underlying Common Stock.
(iid) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iii) The Company will advise the Representative promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, and will not effect such amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating to the Notes is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering For a period of at least 12 months beginning 90 days after the Closing Effective Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(vii) The Company will furnish to each Underwriter copies of the Registration Statement, the Prospectus Company will not offer, sell, contract to sell, pledge, or otherwise dispose of, directly or indirectly, any Common Stock or any securities which are convertible into, or exercisable for, Common Stock, except for (i) shares of Common Stock issued or issuable pursuant to the Offered Securities, specifically including all shares issuable upon conversion or exchange of, or as dividends on, the Offered Securities, (ii) shares of Common Stock issued or issuable pursuant to the Company’s Series A Convertible Preferred Stock, specifically including all conversion shares and all shares that may be issued as dividends thereon, (iii) shares of Common Stock issued or issuable pursuant to the Company’s Series A-1 Warrants, Series A-2 Warrants and Series A-Agent Warrants, (iv) shares of Common Stock issuable upon the exercise of any options or warrants outstanding on the date of this Agreement, (v) shares of Common Stock issuable pursuant to or upon the conversion of any note, debenture, debt instrument and any preliminary Prospectus Supplement related thereto and all amendments and supplements other written agreement to such documents, in each case as soon as available and in such quantities as each Underwriter may reasonably request.
(viii) The Company will cooperate with each Underwriter in arranging for the qualification of the Notes for sale and the determination of their eligibility for investment under the laws of such jurisdictions as each Underwriter designates and will continue such qualifications in effect so long as required for the distribution of the Notes; provided, however, that which the Company shall not be obligated to qualify to do business in any jurisdiction in which it is not currently so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purpose.
(ix) For a period from party on the date of this Agreement until (vi) shares of Common Stock (including grants, options and warrants) issuable pursuant to or in accordance with any plan for which the retirement Company has filed a registration statement that has been declared effective including, without limitation, the 1994 Stock Plan, the 2005 Stock Plan and the Consultant Compensation Plan, or any other stock plan, option plan or written agreements to which the Company is a party on the date of this Agreement including all modifications and replacements thereof, (vii) shares of Common Stock issuable pursuant to or in accordance with any grants, options, warrants, conversions or otherwise for which the Company has filed a registration statement that has been declared effective and (viii) shares of Common Stock issued or issuable pursuant to the Company’s Series-B-Agent Warrants. (the securities described in sections (i) through (viii) inclusive may sometimes be referred to herein as the “Excluded Securities”). The Company will not at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(2) of the Notes, the Company will furnish Securities Act to cease to be applicable to the Underwriters copies offer and sale of the annual statements of compliance delivered Offered Securities and the Underlying Common Stock to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectivelyPurchaser hereunder.
(x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably request.
(a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xiie) The Company will file with shall use the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to net proceeds received from the Company by each sale of the Underwriters and identified by each Offered Securities solely for working capital, including the development of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereoftechnology.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative Representatives promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the Representative's consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and each of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement Representatives' consent (which shall not be unreasonably withheld or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) delayed). If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actinitial resale of the Offered Securities by the Purchasers, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify the Representatives of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither the Representatives' consent to, nor the Purchasers' delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter the Representatives copies of the Registration Statementany preliminary offering circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as the Representatives request, and the Company will furnish to the Representatives as of the date hereof five copies of the final Offering Document signed by a duly authorized officer of the Company. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act and the outstanding Offered Securities or Common Stock issuable upon conversion thereof constitute "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, the Company will promptly furnish or cause to be furnished to the Representatives (and, upon request, to each Underwriter may reasonably requestof the other Purchasers) and, upon request of holders and prospective purchasers of such restricted securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of such restricted securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of such restricted securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States as each Underwriter designates the Representatives designate and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedOffered Securities by the Purchasers, however, provided that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposestate.
(ixd) For a During the period from of five years hereafter (to the date of this Agreement until extent that the retirement of the NotesOffered Securities are then outstanding), the Company will furnish to the Underwriters copies Representatives and, upon request, to each of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreementother Purchasers, as soon as practicable after the end of each fiscal year, a copy of its annual report to shareholders for such statements year; and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you the Representatives and, upon request, to each of the other Purchasers, as soon as practicableavailable, (A) all documents distributed, a copy of each periodic or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust current report and any other information concerning definitive proxy statement of the Company filed with any governmental the Commission under the Exchange Act or regulatory authority which is otherwise publicly available as you may reasonably requestdistributed by the Company to its shareholders.
(ae) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for will, upon request, furnish to the related Prefunded Contracts to be marked to show the Trust's absolute ownership Representatives, each of the related Prefunded Contracts other Purchasers and shall cause any holder of Offered Securities or Common Stock issuable upon conversion thereof a copy of the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Offered Securities or Common Stock issuable upon conversion thereof.
(f) During the period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and two years after the related Prefunding Closing Date, the Company shall will not, and shall instruct will not permit any of its affiliates (as defined in Rule 144 under the Servicer not Securities Act) to, take resell any action inconsistent with of the Trust's ownership Offered Securities or Common Stock issuable upon conversion thereof that have been reacquired by any of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreementthem.
(xiig) During the period of two years after the Closing Date, the Company will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(h) Any information provided by the Company to publishers of publicly available databases about the terms of the Offered Securities shall include a statement that the Offered Securities have not been registered under the Securities Act and are subject to restrictions under Rule 144A under the Securities Act and Regulation S.
(i) The Company will file with reserve and keep available at all times, free of preemptive rights, the Commission as part full number of shares of Common Stock issuable upon conversion of the Offered Securities.
(j) The Company will not for a current report on Form 8-K each ABS Term Sheet provided to period of 90 days following the Company date and time that this Agreement is executed and delivered by the parties hereto (the "Execution Time"), without the prior written consent of each of the Underwriters and identified by each Representatives, offer, sell, contract to sell, pledge or otherwise dispose of them as such (i) no later than the date that the Prospectus Supplement or enter into any transaction which is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted designed to, or might reasonably be expected to, result in the No-Action Lettersdisposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or (ii) no later than two days following their date of first use with respect to "collateral term sheets" any Affiliate (as such term is interpreted defined in Rule 501(b) of Regulation D) of the Company or any person in privity with the Company or any Affiliate of the Company), directly or indirectly, or file (or participate in the No-Action Letters)filing of) a registration statement with the Securities and Exchange Commission 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 and the rules and regulations of the Commission promulgated thereunder with respect to, any shares of capital stock of the Company or any securities convertible or exercisable or exchangeable for such capital stock, or publicly announce an intention to effect any such transaction; provided, however, that prior (i) the Company may issue and sell Common Stock pursuant to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Companyemployee stock option plan, each stock ownership or purchase plan or dividend reinvestment plan of the Underwriters must comply with their obligations Company in effect at the Execution Time, (ii) the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time, (iii) the Company may file registration statements pursuant to Section 4 the Registration Rights Agreement and may issue Common Stock upon conversion of the Offered Securities and (iv) the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance may purchase call spread repurchase transactions pursuant to the CompanyIssuer Call Spread Repurchase Transactions.
(k) The Company will refuse, and will cause all applicable trustees and transfer agents to refuse, to register any transfer of Offered Securities or shares of Common Stock issuable upon conversion of Offered Securities if such transfer is not made in accordance with the effect provisions of Regulation S under the Securities Act, pursuant to an effective registration statement under the Securities Act or pursuant to an available exemption from the registration requirements of the Securities Act; provided that such accountants have performed certain specified procedures, all the provisions of this paragraph shall not be applicable to any Offered Security or share of Common Stock which have has been agreed transferred pursuant to by an effective registration statement or Rule 144 under the CompanySecurities Act and, as a result of which Xxxxx Xxxxxxxx LLP have determined which, or otherwise, is no longer subject to restrictions on transfer under the Securities Act.
(l) All of the Offered Securities and shares of Common Stock issuable upon conversion thereof will contain a legend to the effect that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined transfer thereof is prohibited except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the Securities Act or pursuant to an available exemption from registration under the Securities Act and that hedging transactions involving those Offered Securities or shares may not be conducted unless in compliance with the Securities Act; provided that such agreed upon procedureslegend may be removed if such Offered Securities or shares have been transferred pursuant to an effective registration statement or Rule 144 under the Securities Act, and, as a result of which, or otherwise, is accurate except as no longer subject to such matters that are not deemed by restrictions on transfer under the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereofSecurities Act.
(xiiim) Between the date hereof and the Closing Date, the Company will not do or authorize any act or thing that would result in an adjustment of the conversion price.
(n) The Company will cause Xxxxxxx Xxxxx LLP to deliver pay all expenses incidental to the Underwriters on or before the Prefunding Closing Dateperformance of its obligations under this Agreement, the opinions required to be furnished pursuant to Section 2.01(jIndenture and the Registration Rights Agreement, including (i) the fees and expenses of the Servicing Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities, the preparation and printing of this Agreement, addressed the Offered Securities, the Indenture, the Registration Rights Agreement, the Offering Document and amendments and supplements thereto, and any other document relating to the Underwritersissuance, offer, sale and delivery of the Offered Securities; (iii) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities; (iv) for any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities for sale under the laws of such jurisdictions in the United States as the Representatives designate and the printing of memoranda relating thereto (v) for any fees charged by investment rating agencies for the rating of the Offered Securities, (vi) for expenses incurred in distributing preliminary offering circulars and the Offering Document (including any amendments and supplements thereto) to the Purchasers and (vii) for expenses incurred in connection with admitting the Offered Securities for trading in the PORTAL Market. The Company will also pay or reimburse the Purchasers (to the extent incurred by them) for all travel expenses of the Purchasers and the Company's officers and employees and any other expenses of the Purchasers and the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities from the Purchasers. Notwithstanding the foregoing, the Purchasers shall reimburse the Company for certain expenses incurred in connection with the offering and sale of the Offered Securities, to the extent separately agreed between the Company and the Purchasers.
(o) In connection with the offering, until the Representatives shall have notified the Company and the other Purchasers of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it 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 Offered Securities.
(p) Neither the Company, nor any of its Affiliates, nor any person acting on its or their behalf will engage in any directed selling efforts with respect to the transfer Securities, and each of them will comply with the related Prefunded Contracts substantially offering restrictions requirement of Regulation S. Terms used in this paragraph have the form of the opinions delivered meanings given to them by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.Regulation S.
Appears in 1 contract
Samples: Purchase Agreement (Computer Associates International Inc)
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative Representatives promptly of any proposal to amend or supplement the Registration Statement as filed Preliminary or the Prospectus, Final Offering Circular and will not effect such amendment or supplement supplementation without the Representative's Representatives’ consent, which consent will shall not be unreasonably be withheldwithheld or delayed. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actinitial resale of the Offered Securities by the Purchasers, any there occurs an event occurs or development as a result of which any document included in the Prospectus as then amended Preliminary or supplemented Final Offering Circular, the General Disclosure Package or any Supplemental Marketing Material included or would include an untrue statement of a material fact or omitted or would omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madeprevailing at such time, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify the Representatives of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither the Representatives’ consent to, nor the Purchasers’ delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 7.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter the Representatives copies of the Registration StatementPreliminary Offering Circular, each other document comprising a part of the General Disclosure Package, the Prospectus and any preliminary Prospectus Supplement related thereto and Final Offering Circular, all amendments and supplements to such documentsdocuments and each item of Supplemental Marketing Material, in each case as soon as available and in such quantities as each Underwriter may the Representatives reasonably request. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to the Representatives (and, upon request, to each of the other Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter designates the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution initial resale of the Notes; providedOffered Securities by the Purchasers, however, provided that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any jurisdiction where it such state or subject itself to taxation in respect of doing business.
(d) During the period of two years after the Closing Date, the Company will, upon request, furnish to the Representatives, each of the other Purchasers and any holder of Offered Securities a copy of the restrictions on transfer applicable to the Offered Securities.
(e) During the period of two years after the Closing Date, the Company will not, and will not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Offered Securities that have been reacquired by any of them.
(f) During the shorter of (i) the period of two years after the Closing Date and (ii) the period from the Closing Date until the date upon which the transfer restrictions applicable to the Offered Securities shall no longer apply, the Company will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is not now so subject. or is required to be registered under Section 8 of the Investment Company Act.
(g) The Company will promptly advise pay all expenses incidental to the Underwriters performance of its obligations under this Agreement, the Mortgage and the Registration Rights Agreement, including (i) the fees and expenses of the receipt Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Securities (as defined in the Registration Rights Agreement), the preparation and printing of this Agreement, the Registration Rights Agreement, the Offered Securities, the Mortgage, the Preliminary Offering Circular, any other documents comprising any part of the General Disclosure Package, the Final Offering Circular, all amendments and supplements thereto, each item of Supplemental Marketing Material and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and as applicable, the Exchange Securities; (iii) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities; (iv) any notification expenses (including reasonable fees and disbursements of counsel for the Purchasers) incurred in connection with respect to the suspension or the qualification of the Notes Offered Securities or the Exchange Securities for sale under the laws of such jurisdictions in the United States and Canada as the Representatives reasonably designate and the printing of memoranda relating thereto; (v) any jurisdiction fees charged by investment rating agencies for the rating of the Offered Securities or the initiation or threat Exchange Securities; and (vi) the expenses incurred in distributing the Preliminary Offering Circular, any other documents comprising any part of the General Disclosure Package, the Final Offering Circular (including any proceeding for such purposeamendments and supplements thereto) and any Supplemental Marketing Material to the Purchasers.
(ixh) For In connection with the offering, until the Representatives shall have notified the Company and the other Purchasers of the completion of the initial resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it 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 Offered Securities.
(i) The Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Securities Act relating to, debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of the Representatives for a period from beginning at the date of this Agreement until the retirement of the Notes, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably request.
(a) On or before ending on the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) . The Company will file with not at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company exemption afforded by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j4(2) of the Servicing Agreement, addressed Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the Underwriters, with respect to the transfer offer and sale of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsOffered Securities.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative CSFBC promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the RepresentativeCSFBC's consent, which consent will shall not be unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Purchasers, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify CSFBC of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither CSFBC's consent to, nor the Purchasers' delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter CSFBC copies of the Registration Statementany preliminary offering circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as each Underwriter may CSFBC reasonably requestrequests. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act and any Offered Securities are outstanding, upon request of holders and prospective purchasers of the Offered Securities the Company will furnish or cause to be furnished, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate endeavor in good faith in cooperation with each Underwriter in arranging the Purchasers to arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter CSFBC designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedOffered Securities by the Purchasers, however, provided that the Company shall will not be obligated required to qualify as a foreign corporation or to do file a general consent to service of process or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not currently so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now otherwise so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purpose.
(ixd) For a During the period from the date of this Agreement until the retirement of the Notesten years hereafter, the Company will furnish to the Underwriters copies CSFBC and, upon request, to each of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreementother Purchasers, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such statements year; and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you CSFBC and, upon request, to each of the other Purchasers (i) as soon as practicableavailable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by a copy of each report and any definitive proxy statement of the Company filed with the Commission pursuant to under the Exchange Act, any order of the Commission thereunder Act or pursuant mailed to a "no-action" letter from the staff of the Commission stockholders and (Cii) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you CSFBC may reasonably request.
(ae) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date or, if earlier, until such time as the Offered Securities are no longer restricted securities (as defined in Rule 144 under the Securities Act), the Company shall notwill, upon request, furnish to CSFBC, each of the other Purchasers and shall instruct any holder of Offered Securities a copy of the Servicer not to, take any action inconsistent with restrictions on transfer applicable to the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust AgreementOffered Securities.
(bf) On During the period of two years after the Closing Date or, if earlier, until such time as the Offered Securities are no longer restricted securities (as defined in Rule 144 under the Securities Act), the Company will use its reasonable efforts to cause its affiliates (as defined in Rule 144 under the Securities Act) not to resell any of the Offered Securities that have been reacquired by any of them.
(g) The Company will pay all expenses incidental to the performance of its obligations under this Agreement, the Indenture, and the Registration Rights Agreement, including (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Securities (as defined in the Registration Rights Agreement), the preparation and printing of this Agreement, the Registration Rights Agreement, the Offered Securities, the Indenture, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and as applicable, the Exchange Securities; (iii) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities (iv) for any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities or before the related Prefunding Exchange Securities for sale under the laws of such jurisdictions in the United States and Canada as CSFBC designates and the printing of memoranda relating thereto, (v) for any fees charged by investment rating agencies for the rating of the Securities or the Exchange Securities, and (vi) for expenses incurred in distributing preliminary offering circulars and the Offering Document (including any amendments and supplements thereto) to the Purchasers. The Company will also pay or reimburse the Purchasers (to the extent incurred by them) for all travel expenses of the Company's officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities from the Purchasers.
(h) In connection with the offering, until CSFBC shall have notified the Company and the other Purchasers of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it 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 Offered Securities.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company shall cause its computer records for the related Prefunded Contracts will not offer, sell, contract to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to sell, pledge or otherwise dispose of, directly or indirectly, any United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the related Prefunded Contracts and the subsequent transfer date of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) issue. The Company will file with not at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company exemption afforded by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j4(2) of the Servicing Agreement, addressed Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the Underwriters, with respect to the transfer offer and sale of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsOffered Securities.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Home Depot Inc)
Certain Agreements of the Company. The Company agrees with the Underwriters Investors that:
(ia) Immediately following Upon the Closing, the Investors shall receive the right to appoint one representative for all of the Investors to observe the activities of the Board; such right shall expire upon the exchange and conversion of all of the Remaining Preferred Securities into shares of Common Stock.
(b) As promptly as practicable after the execution of this Agreement, and in any event not more than ten (10) days following the execution of this Agreement by all parties hereto, the Company will prepare shall prepare, and file with the Commission, a Prospectus Supplement setting forth preliminary proxy statement with respect to obtaining stockholder approval of the amount issuance and sale of Notes covered thereby shares of Common Stock pursuant to the Share Purchase Agreement and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are issuance of shares of TIDES Equity pursuant to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(iic) Prior Promptly after the date hereof, the Company shall take such action as is necessary to convene a meeting of its stockholders (the "Special Meeting"), which Special Meeting shall be held as promptly as practicable for the purpose of voting on the issuance and sale of the shares of Common Stock pursuant to the termination Share Purchase Agreement and the issuance of shares of TIDES Equity pursuant to this Agreement.
(d) At any time when the Company is not subject to Section 13 or 15(d) of the offering of the NotesExchange Act, the Company will not file any amendment promptly furnish or cause to be furnished to the Investors, a reasonable number of copies of the Registration Statement information required to be delivered to holders and prospective purchasers of shares of Common Stock pursuant to Rule 144 under the Securities Act (or supplement any successor provision thereto) in order to permit compliance with Rule 144 in connection with resales by the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing Investors of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph shares of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filingCommon Stock.
(iiie) The Company represents and warrants that, on the basis of any actions and agreements by it, there are no brokers or finders entitled to compensation in connection with the transactions contemplated by this Agreement other than William Blair & Company LLC. The Company shall indemnify and xxxx xxxxxxxs the Investors from and against all fees, commissions or other payments owing by the Company to William Blair & Company LLC or any other person or firm acting on xxxxxx of the Company or the Trust hereunder.
(f) The Company will advise the Representative promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, and will not effect such amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement pay all expenses incidental to the Registration Statement or the Prospectus or for any additional information performance of its obligations under this Agreement and the Company will also advise Amendments, including, but not limited to, (i) the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus fees and expenses of the issuance by Trustees and their professional advisers; (ii) all expenses in connection with the Commission of any stop order suspending the effectiveness execution, issue, authentication, packaging and initial delivery of the Registration Statement or the institution or threat shares of any proceeding for that purpose, Common Stock and the Company will use its best efforts to prevent preparation of this Agreement and the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration StatementAmendments, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus other document relating to the Notes Exchange; (iii) the reasonable fees and disbursements, up to but not to exceed $100,000, of Bingham Dana LLP, which is required to be delivered under acting as special counsel for the Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply Xxxxxxxxx xn connection with the Act, the Company promptly will prepare transactions contemplated by this Agreement; and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders registration of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(vii) The Company will furnish Registered Shares pursuant to each Underwriter copies of the Registration Statement, the Prospectus procedures in Section 10(a)(i)-(vii) hereof and the listing of the Registered Shares on the Nasdaq National Market, but excluding fees and expenses of counsel for the Investors in excess of the $100,000 fee limitation described in clause (iii) above and any preliminary Prospectus Supplement related thereto commissions or other amounts payable to brokers and all amendments and supplements any transfer taxes relating to such documents, in each case as soon as available and in such quantities as each Underwriter may reasonably requestRegistered Shares sold by the Investors.
(viiig) The Company will cooperate is not obligated to issue any shares of Common Stock or any Derivative Securities pursuant to or in connection with each Underwriter which the price payable for any such shares of Common Stock (including, without limitation, on conversion or exercise of any such Derivative Securities) is or is to be, in arranging for whole or in part, based on or derived from or by reference to any future trading price or other measure of value of such shares of Common Stock. The Company shall, within thirty (30) days after the qualification Closing Date, adopt an amendment to the Company's Bylaws to provide (i) that, unless approved by a majority vote of the Notes for sale and the determination shares of their eligibility for investment under the laws of such jurisdictions as each Underwriter designates and will continue such qualifications in effect so long as required for the distribution Common Stock of the Notes; providedCompany issued and outstanding, however, that the Company shall not be obligated to qualify to do business in sell or issue any jurisdiction in which it is not currently so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purpose.
(ix) For a period from the date of this Agreement until the retirement of the Notes, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession security of the Company concerning the Trust and any other information concerning the Company filed with any governmental convertible into, or regulatory authority exercisable or exchangeable for, shares of Common Stock ("Common Stock Equivalent"), having a conversion, exercise or exchange price per share ("Equivalent Price") which is otherwise publicly available as you may reasonably request.
(a) On or before the Closing Date the Company shall cause its computer records relating subject to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not downward adjustment based on the Contract Pool information) by the Company, each market price of the Underwriters must comply with their obligations pursuant Common Stock at the time of conversion, exercise or exchange of such security into Common Stock (except for appropriate adjustments made to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance give effect to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if anyany stock splits or stock dividends), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on that such amendment to its Bylaws may not be further amended or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) repealed without an affirmative vote of the Servicing Agreementholders of a majority of the shares of Common Stock present and entitled to vote at a duly convened meeting of stockholders.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative Representatives promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the Representative's Representatives’ consent, which consent will not unreasonably be withheldreasonably withheld or delayed. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Act, resale of the Offered Securities by the Purchasers any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify the Representatives of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission or an effect such compliance. Neither the Representatives’ consent to, nor the Purchasers’ delivery to offerees or investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter the Representatives copies of the Registration StatementPreliminary Offering Circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as each Underwriter may the Representatives reasonably request. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act and any of the Offered Securities remain outstanding, the Company will promptly furnish or cause to be furnished to the Representatives (and, upon request, to each of the other Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions states in the United States as each Underwriter designates the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution resale of the Notes; provided, however, Offered Securities by the Purchasers provided that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposestate.
(ixe) For a During the period from the date of this Agreement until the retirement of the Notes, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably request.
(a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for will, upon request, furnish to the related Prefunded Contracts to be marked to show the Trust's absolute ownership Representatives, each of the related Prefunded Contracts other Purchasers and shall cause any holder of Offered Securities a copy of the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Offered Securities.
(f) During the period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and two years after the related Prefunding Closing Date, the Company shall will not, and shall instruct will not permit any of its affiliates (as defined in Rule 144 under the Servicer not Securities Act) to, take resell any action inconsistent with of the Trust's ownership Offered Securities that have been reacquired by any of such Prefunded Contractsthem.
(g) During the period of two years after the Closing Date, other than as permitted by the Company will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(h) The Company will pay all expenses incidental to the performance of its obligations under this Agreement, the Indenture and the Trust Registration Rights Agreement including (i) the fees and expenses of Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Securities (as defined in the Registration Rights Agreement), the preparation and printing of this Agreement, the Registration Rights Agreement, the Offered Securities, the Indenture, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and as applicable the Exchange Securities (iii) the cost of qualifying the Offered Securities for trading in The PortalSM Market (“PORTAL”) of The Nasdaq Stock Market, Inc. and any expenses incidental thereto, (iv) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities, (v) for any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities or the Exchange Securities for sale under the laws of such jurisdictions as the Representatives designate and the printing of memoranda relating thereto, (vi) for any fees charged by investment rating agencies for the rating of the Securities or the Exchange Securities, and (vii) for expenses incurred in distributing preliminary offering circulars and the Offering Document (including any amendments and supplements thereto) to the Purchasers. The Company will reimburse the Purchasers for all travel expenses of the Purchasers and the Company’s officers and employees and any other expenses of the Purchasers and the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities.
(xiii) In connection with the offering, until the Representatives shall have notified the Company and the other Purchasers of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it 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 Offered Securities.
(j) For a period of 90 days after the date of the initial offering of the Offered Securities by the Purchasers, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue without the prior written consent of the Representatives, or publicly disclose the intention to make any such offer, sale, pledge or disposition, without the prior written consent of the Representatives, which consent shall not be unreasonably withheld or delayed; provided that this provision shall not prohibit the filing of any Registration Statement, the issuance of the Exchange Securities, borrowings under the credit facilities existing on the date hereof or secured financings of accounts receivables and inventory. The Company will file with not at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company exemption afforded by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j4(2) of the Servicing Agreement, addressed Securities Act to cease to be applicable to the Underwriters, with respect to the transfer offer and sale of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsSecurities.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the Underwriters Purchaser that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative CSFB promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the Representative's CSFB’s consent, which such consent will not to be unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Purchaser, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify CSFB of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither CSFB’s consent to, nor the Purchaser’ delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter CSFB copies of the Registration StatementPreliminary Offering Circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Circular and all amendments and supplements to such documents, in each case as soon as available and in such quantities as each Underwriter may CSFB reasonably requestrequests. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to CSFB and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchaser all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions states in the United States as each Underwriter CSFB designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; provided, however, Offered Securities by the Purchaser provided that the Company shall will not be obligated required to qualify as a foreign corporation or to do business file a general consent to service of process in any jurisdiction in which it is not currently so qualified such state or to take any action which that would subject it to general taxation based on its income or unlimited service of process revenues in any jurisdiction where it is not now so subject. currently subject to taxation.
(d) During the period of two years after the later of the First Closing Date and the Optional Closing Date, the Company will, upon request, furnish to CSFB and any holder of Offered Securities a copy of the restrictions on transfer applicable to the Offered Securities.
(e) During the period of two years after the later of the First Closing Date and the Optional Closing Date, the Company will not, and will not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Offered Securities that have been reacquired by any of them.
(f) The Company will promptly advise pay all expenses incidental to the Underwriters performance of its obligations under this Agreement, the Indenture and the Registration Rights Agreement including (i) the fees and expenses of the receipt Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities, the preparation and printing of the Offered Securities, the Indenture, and the Offering Document and amendments and supplements thereto; (iii) the cost of qualifying the Offered Securities for trading in The PortalSM Market (“PORTAL”) of The Nasdaq Stock Market, Inc. and any expenses incidental thereto, (iv) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities, (v) any notification expenses (including fees and disbursements of counsel) incurred in connection with respect to the suspension or the qualification of the Notes Offered Securities for sale under the laws of such jurisdictions in the United States as CSFB designates and the printing of memoranda relating thereto, and (vi) expenses incurred in distributing the Preliminary Offering Circulars and the Offering Circular (including any jurisdiction or amendments and supplements thereto) to the initiation or threat Purchaser, provided that the Company will not be required to reimburse the Purchaser for any of any proceeding for such purposethe Purchaser’s out-of-pocket expenses (including fees and disbursements of counsel) incurred in connection with the offering of the Offered Securities.
(ixg) In connection with the offering, until CSFB shall have notified the Company and the Purchaser of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it 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 Offered Securities.
(h) For a period from of 90 days after the date of the initial offering of the Offered Securities by the Purchaser, the Company will not offer, sell, contract to sell, pledge, or otherwise dispose of, directly or indirectly, any shares of Common Stock of the Company or securities convertible into or exchangeable or exercisable for shares of Common Stock of the Company or warrants or other rights to purchase shares of Common Stock of the Company, without the prior written consent of CSFB, or publicly disclose the intention to make any such offer, sale, pledge or disposition; provided that such restriction shall not apply to: (i) the Offered Securities, (ii) the filing of the shelf registration statement covering resales of the Offered Securities pursuant to the Registration Rights Agreement (the “Shelf Registration Statement”), (iii) the filing of any registration statement on Form S-8 to register Shares of Common Stock reserved for issuance under the Company’s equity compensation plans; (iv) the conversion or exchange of convertible or exchangeable securities or the exercise of warrants or options, in each case outstanding on the date hereof; (v) grants of employee stock options pursuant to the terms of a plan in effect on the date hereof, (vi) issuances of Common Stock pursuant to the exercise of such options and (vii) the filing of a universal shelf registration statement to register the Company’s Common Stock, preferred stock, debt securities, warrants and units, provided that such universal shelf registration statement is filed on or after the 31st day following the date of this Agreement until the retirement date of the Notes, the Company will furnish to the Underwriters copies filing of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably request.
(a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) Shelf Registration Statement. The Company will file with not at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company exemption afforded by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j4(2) of the Servicing Agreement, addressed Securities Act to cease to be applicable to the Underwriters, with respect to the transfer offer and sale of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsOffered Securities.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Certain Agreements of the Company. The Company covenants and agrees with the Underwriters thatInitial Purchaser as follows:
(ia) Immediately following To furnish the execution Initial Purchaser and those persons identified by the Initial Purchaser, without charge, with as many copies of the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchaser may reasonably request for purposes contemplated by the Act. The Company consents to the use of the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative Initial Purchaser in accordance connection with Exempt Resales that are in compliance with Section 5(vii4(B) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(iib) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iii) The Company will advise the Representative promptly of any proposal Not to amend or supplement the Registration Statement as filed or Offering Memorandum prior to the ProspectusClosing Date unless the Initial Purchaser shall previously have been advised of, and will shall not effect have objected to (any such objection not to be unreasonable), such amendment or supplement without the Representative's consentwithin a reasonable time, which consent will but in any event not unreasonably be withheldlonger than five days after being furnished with a copy of such amendment or supplement. The Company will also advise shall promptly prepare, upon the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of Initial Purchaser's reasonable request, any amendment or supplement to the Registration Statement Offering Memorandum that may be necessary or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued orderadvisable in connection with Exempt Resales.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(vc) If, at any during the time when a Prospectus relating to the Notes that an Offering Memorandum is required to be delivered under in connection with any Exempt Resales or market-making transactions after the Actdate of this Agreement and prior to the consummation of the Exchange Offer, any event occurs as a result shall occur that, in the judgment of which the Prospectus as then amended Company or supplemented would include an untrue in the judgment of counsel to the Initial Purchaser, makes any statement of a material fact in the Offering Memorandum untrue or omit that requires the making of any additions to state any material fact necessary or changes in the Offering Memorandum in order to make the statements thereinin the Offering Memorandum, in the light of the circumstances under which they were are made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus Offering Memorandum to comply with the Actall applicable laws, the Company shall promptly will notify the Initial Purchaser of such event and prepare and file with the Commission (subject an appropriate amendment or supplement to the Representative's prior review pursuant 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 paragraph prospective Eligible Purchasers, not be misleading and (ii) of this Section 5) an amendment or supplement which the Offering Memorandum will correct such statement or omission or an amendment or supplement which will effect such compliancecomply with applicable law.
(vid) As soon To furnish such information as practicable, may be required and otherwise to cooperate with the Company will cause the Trust to make generally available Initial Purchaser and counsel to the Noteholders Initial Purchaser in qualifying the Senior Notes and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(vii) The Company will furnish to each Underwriter copies of the Registration Statement, the Prospectus and any preliminary Prospectus Supplement related thereto and all amendments and supplements to such documents, in each case as soon as available and in such quantities as each Underwriter may reasonably request.
(viii) The Company will cooperate with each Underwriter in arranging for the qualification of the Exchange Notes for offering and sale and the determination of their eligibility for investment under the securities or Blue Sky laws of such jurisdictions as each Underwriter designates the Initial Purchaser may request and will continue to maintain such qualifications qualification in effect so long as required for the distribution of the NotesExempt Resales; provided, however, provided that the Company shall not be obligated required to qualify to do business as a foreign partnership, limited liability company or corporation in any jurisdiction in which it is not currently so qualified or to take any action which would subject it file a general consent to general or unlimited 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 now then so subject. The Company will promptly advise the Underwriters subject (except service of the receipt by the Company of any notification process with respect to the suspension offering and sale of the Senior Notes and Exchange Notes).
(e) To advise the Initial Purchaser promptly and, if requested by the Initial Purchaser, to confirm such advice in writing, of the issuance by any securities commission of any stop order or notification suspending the qualification or exemption from qualification of any of the Senior Notes for offering or sale in any jurisdiction jurisdiction, or the initiation or threat of any proceeding for such purposepurpose by any state securities commission or other regulatory authority. The Company shall use its reasonable best efforts (unless otherwise agreed by the Initial Purchaser) to prevent the issuance of any stop order or order suspending the qualification or exemption of any of the Senior 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 Senior Notes under any state securities or Blue Sky laws, the Company shall use its reasonable best efforts (unless otherwise agreed by the Initial Purchaser) to obtain the withdrawal or lifting of such order at the earliest possible time.
(ixf) For a period from Whether or not the date of transactions contemplated by this Agreement until are consummated or this Agreement becomes effective or is terminated, to pay all costs, expenses, fees, disbursements (including fees, expenses and disbursements of counsel) and stamp, documentary or similar taxes incident to and in connection with: (i) the retirement preparation, printing, filing and distribution of the NotesOffering Memorandum (including, without limitation, financial statements) and all amendments and supplements thereto, (ii) the preparation and delivery of the Operative Documents and all other agreements, memoranda, correspondence and documents prepared and delivered in connection with this Agreement and with the Exempt Resales, (iii) the issuance, transfer and delivery by the Company of the Senior Notes to the Initial Purchaser, (iv) the qualification or registration of the Senior Notes for offer and sale under the securities or Blue Sky laws of the several states (including, without limitation, the Company will furnish cost of printing and mailing a preliminary and final Blue Sky memorandum and the fees and disbursements of counsel to the Underwriters Initial Purchaser relating thereto), (v) the furnishing of such copies of the annual statements Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vi) the preparation of compliance delivered to certificates for the Indenture Trustee pursuant to Section 3.09 Senior Notes and Exchange Notes (including, without limitation, printing and engraving thereof), (vii) the application for eligibility of the Indenture Senior Notes for trading in the Private Offerings, Resales and Section 3.10 Trading through Automated Linkages ("PORTAL") market of the Servicing AgreementNational Association of Securities Dealers, Inc. ("NASD"), including, but not limited to, all application fees and expenses, (viii) the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 approval of the Servicing AgreementSenior Notes and Exchange Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, as soon as practicable after such statements (ix) the rating of the Senior Notes and reports are furnished to Exchange Notes by rating agencies, (x) the Indenture fees and expenses of the Trustee and Owner Trustee respectivelyits counsel and (xi) the performance by the Company of its other obligations under the Operative Documents, including, but not limited to, the fees, disbursements and expenses of the Company's counsel and accountants.
(xg) So To use the proceeds from the sale of the Senior 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 Senior Notes.
(i) Not 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 Senior Notes in a manner that would require the registration under the Act of the sale of the Senior Notes to the Initial Purchaser or any Eligible Purchasers.
(j) During the period of two years after the Closing Date or, if earlier, until such time as the Senior Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to, and not to permit any of its affiliates (as defined in Rule 144 under the Act) to, resell any of the Senior Notes that have been reacquired by any of them.
(k) Not to engage, or allow any of its affiliates, or any person acting on its behalf (other than in any case the Initial Purchaser, as to whom the Company makes no covenant) 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 Senior Notes.
(l) Not to engage, or allow any of its affiliates, or any person acting on its behalf (other than in any case the Initial Purchaser, as to whom the Company makes no covenant), to engage in any directed selling effort with respect to the Senior Notes, and agrees 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) In connection with the Offering, until the Initial Purchaser shall have notified the Company of the completion of the resale of the Senior Notes, not to, and not to permit any of its affiliates to, either along 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 in any Senior Notes; and neither it 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 Senior Notes.
(n) During the period of two years after the Closing Date or, if earlier, until such time as the Senior Notes are no longer restricted securities (as defined in Rule 144 under the Act), not to be or become an investment company required to be registered, but not registered, under the Investment Company Act of 1940, as amended (the "Investment Company Act").
(o) From and after the Closing Date, for so long as any of the Senior 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 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 the information required by Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of Senior Notes in connection with any sale of such Senior Notes and (ii) any prospective purchaser of such Senior Notes from any such holder or beneficial owner designated by the holder or beneficial owner.
(p) To comply with all of its agreements set forth in the Registration Rights Agreement and all agreements set forth in the representations letter of the Company to DTC relating to the approval of the Senior Notes by DTC for "book-entry" transfer.
(q) To use its best efforts to effect the eligibility of the Senior Notes for trading in the PORTAL market and to obtain approval of the Senior Notes by DTC for "book-entry" transfer.
(r) From and after the Closing Date, for so long as any of the Senior Notes remain outstanding, to deliver without charge to the Initial Purchaser, promptly upon their becoming available, copies of (i) all reports and other communications (financial or otherwise) that the Company will furnish shall mail or otherwise make available to you as soon as practicableits security holders, (Aii) all documents distributed, reports or caused financial statements furnished to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, filed by the Company with the Commission pursuant to the Exchange Act, or any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission national securities exchange and (Ciii) from time to time, such other information in as the possession of Initial Purchaser may reasonably request regarding the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably requestits subsidiaries.
(as) On or before the Closing Date the Company shall cause its computer records relating Prior to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale furnish to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the TrustInitial Purchaser, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) The Company will file with the Commission soon as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) they have been prepared by the Company, each a copy of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all any regularly prepared internal financial statements of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant any period subsequent to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed period covered by the Company financial statements appearing in the Offering Memorandum and prior to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereofthe Closing Date.
(xiiit) The Company will cause Xxxxxxx Xxxxx LLP Not to deliver distribute prior to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date any offering material in connection with respect to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate offer and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) sale of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, Senior Notes other than the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing AgreementOffering Memorandum.
Appears in 1 contract
Samples: Purchase Agreement (Veritas DGC Inc)
Certain Agreements of the Company. The Company agrees with the Underwriters Purchaser that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative Purchaser promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the RepresentativePurchaser's consent, which consent will shall not be unreasonably be withheldwithheld or delayed. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Purchaser, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify the Purchaser of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither the Purchaser's consent to, nor its delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter the Purchaser copies of the Registration Statementany preliminary offering circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as each Underwriter may the Purchaser reasonably requestrequests. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to the Purchaser and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchaser all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter the Purchaser designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedOffered Securities by the Purchaser, however, provided that the Company shall will not be obligated required to qualify as a foreign corporation or to do business file a general consent to service of process in any jurisdiction in which it is not currently so qualified such state or to take any action which that would subject it to general taxation based on its income or unlimited service of process revenues in any jurisdiction where it is not now currently subject to taxation.
(d) During the period of two years after the later of the First Closing Date and the last Optional Closing Date, the Company will, upon request, furnish to the Purchaser and any holder of Offered Securities a copy of the restrictions on transfer applicable to the Offered Securities.
(e) During the period of two years after the later of the First Closing Date and the last Optional Closing Date, the Company will not (i) sell any of the Offered Securities that have been reacquired by it, or (ii) permit any of its affiliates as defined in Rule 144A to resell any of the Offered Securities that have been reacquired by any of them, but only if and to the extent that the Company controls such affiliates or is able to cause such affiliates through contractual or other rights to so subject. act.
(f) During the period of two years after the later of the First Closing Date and the last Optional Closing Date, the Company will not be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(g) The Company will promptly advise pay all expenses incidental to the Underwriters performance of its obligations under this Agreement, the Indenture and the Registration Rights Agreement, including (i) the fees and expenses of the receipt Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities, the preparation and printing of the Offered Securities, the Indenture and the Offering Document and amendments and supplements thereto, (iii) the cost of qualifying the Offered Securities for trading in The PortalSM Market ("PORTAL") and any expenses incidental thereto; (iv) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities; (v) for any notification expenses (including fees and disbursements of counsel) incurred in connection with respect to the suspension or the qualification of the Notes Offered Securities for sale under the laws of such jurisdictions in the United States and Canada as the Purchaser designates and the printing of memoranda relating thereto, and (vi) expenses incurred in distributing preliminary offering circulars and the Offering Document (including any jurisdiction or amendments and supplements thereto) to the initiation or threat of any proceeding for such purposePurchaser.
(ixh) In connection with the offering, until the Purchaser shall have notified the Company of the completion of the resale of the Offered Securities, neither the Company nor any affiliate controlled by it has or will, either alone or with one or more other persons, bid for or purchase for any account in which it or any of such affiliates has a beneficial interest any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it nor any of any affiliates controlled by it will make bids or purchases for the purpose of creating actual or apparent active trading in, or of raising the price of, the Offered Securities.
(i) For a period from of 90 days after the date of the initial offering of the Offered Securities by the Purchaser, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Securities Act relating to, any shares of Common Stock of the Company or securities convertible into or exchangeable or exercisable for shares of Common Stock of the Company or warrants or other rights to purchase shares of Common Stock of the Company, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of the Purchaser; provided that such restriction shall not apply to: (i) the Offered Securities; (ii) the filing of the Shelf Registration Statement covering resales of the Offered Securities pursuant to the Registration Rights Agreement; (iii) shares of Common Stock issued by the Company upon conversion of the Offered Securities or upon the exercise or conversion of options, warrants or convertible securities, in each case outstanding on the date of this Agreement; (iv) issuances and purchases pursuant to the confirmations to the ISDA 1992 Master Agreement (Multicurrency - Cross Border), dated as of December 17, 2003, between Credit Suisse First Boston International and the Company; (v) the sale or transfer of shares of Common Stock issued pursuant to an accelerated stock repurchase program; (vi) the filing of any registration statement on Form S-8 to register shares of Common Stock reserved for issuance under the Company's equity compensation plans; and (vii) shares of Common Stock offered, contracted to sell, or issued or to be issued pursuant to acquisitions, including the issuance or assumption of options in connection therewith, provided that the aggregate number of shares of Common Stock so issued does not exceed 25% of the shares of Common Stock outstanding on the date of this Agreement until and provided further that all recipients of such shares of Common Stock enter into a lock-up agreement in the retirement form attached hereto as Exhibit A. The Company will not at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, contract, pledge or disposition would cause the exemption afforded by Section 4(2) of the Notes, Securities Act or the Company will furnish safe harbor of Regulation S thereunder to cease to be applicable to the Underwriters copies offer and sale of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectivelyOffered Securities.
(x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably request.
(a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xiij) The Company will file with use the Commission proceeds from the Offered Securities as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted described in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereofOffering Document.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative Managers promptly of any proposal to amend or supplement the Registration Statement Offering Document and, except as filed or contemplated by the Prospectusnext sentence, and will not effect such amendment or supplement supplementation without the Representative's Managers' consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Act, resale of the Offered Securities by the Purchasers any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any such time to amend or supplement the Prospectus Offering Document to comply with the Actany applicable law, the Company promptly will prepare notify the Managers of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission or an effect such compliance. Neither the Managers' consent to, nor the Purchasers' delivery to offerees or investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter the Managers copies of the Registration Statement, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as the Managers request, and the Company will furnish to the Managers on the date hereof copies of the Offering Document. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to the Managers and, upon request, to each Underwriter may reasonably requestof the other Purchasers and, upon request of holders of the Offered Securities, to such holders, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions states in the United States as each Underwriter designates the Managers designate and will continue such qualifications in effect so long as required for the distribution resale of the NotesOffered Securities by the Purchasers; provided, however, PROVIDED that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process or become subject to taxation in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposestate.
(ixd) For a period from So long as the date of this Agreement until Offered Securities, Exchange Securities or Private Exchange Securities (as defined in the retirement of the NotesRegistration Rights Agreement) are outstanding and held by any Purchaser or its affiliates, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing AgreementManagers, as soon as practicable after the end of each fiscal year, a copy of any annual report to shareholders for such statements year that is mailed to shareholders; and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by Managers such other information concerning the Company with as the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) Managers may reasonably request from time to time, such other information in subject to any confidentiality arrangements reasonably requested by the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably requestCompany.
(ae) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for will, upon request, furnish to the related Prefunded Contracts to be marked to show the Trust's absolute ownership Managers and any holder of Offered Securities a copy of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Securities.
(f) During the period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and two years after the related Prefunding Closing Date, the Company shall will not, and shall instruct will not permit any of its affiliates (as defined in Rule 144 under the Servicer not Securities Act) that are subsidiaries of Parent to, take resell any action inconsistent with of the Trust's ownership Offered Securities that have been reacquired by any of such Prefunded Contractsthem.
(g) During the period of two years after the Closing Date, other than as permitted by the Company will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(h) The Company will pay all expenses incidental to the performance of its obligations under this Agreement, the Indenture and the Trust Registration Rights Agreement, including (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Securities, the preparation and printing of this Agreement, the Registration Rights Agreement, the Offered Securities, the Indenture, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and, as applicable, the Exchange Securities; (iii) the cost of qualifying the Offered Securities for trading in The Portal(SM) Market ("PORTAL") of The Nasdaq Stock Market, Inc. and any expenses incidental thereto, (iv) he cost of any advertising approved by the Company in connection with the issue of the Offered Securities, (v) for any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities or the Exchange Securities for sale under the laws of such jurisdictions as the Managers designate and the printing of memoranda relating thereto, (vi) for any fees charged by investment rating agencies for the rating of the Offered Securities or the Exchange Securities and (vii) for expenses incurred in distributing preliminary offering circulars and the Offering Document (including any amendments and supplements thereto) to the Purchasers. The Company will reimburse the Purchasers an amount equal to (A) any expenses incurred by the Purchasers in connection with the lease and/or operation of aircraft by the Purchasers or officers and employees of the Company, AmeriPath or the Subsidiaries used in connection with attending or hosting meetings with prospective purchasers of the Offered Securities PLUS (B) any travel and other expenses of the officers and employees of the Company, AmeriPath or the Subsidiaries incurred by the Purchasers in connection with attending or hosting meetings with prospective purchasers of the Offered Securities.
(xiii) In connection with the offering, until the Managers shall have notified the Company of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it 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 Offered Securities.
(j) For a period of 180 days after the date of the initial offering of the Offered Securities by the Purchasers, without the prior written consent of Credit Suisse First Boston LLC, the Company will not offer, sell, contract to sell, pledge, or otherwise dispose of, directly or indirectly, any United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue. The Company will file with not at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.exemption afforded by
Appears in 1 contract
Samples: Purchase Agreement (Diagnostic Pathology Management Services Inc)
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative CSFBC promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the RepresentativeCSFBC's consent, which consent will shall not be unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Purchasers, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify CSFBC of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither CSFBC's consent to, nor the Purchasers' delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter CSFBC copies of the Registration Statementany Preliminary Offering Circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as CSFBC reasonably requests. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to CSFBC (and, upon request, to each Underwriter may reasonably requestof the other Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, a reasonable number of copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter CSFBC designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedOffered Securities by the Purchasers, however, provided that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposestate.
(ixd) For a period from To the date of this Agreement until extent that the retirement Company's periodic reports under the Exchange Act are not readily available in the Commission's XXXXX system (or any successor thereto), or the Company no longer files periodic reports under Section 13 or 15(d) of the NotesExchange Act, during the period of five years hereafter, the Company will furnish to the Underwriters copies CSFBC and, upon request, to each of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreementother Purchasers, as soon as practicable after the end of each fiscal year, a copy of its annual report to shareholders for such statements year; and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you CSFBC and, upon request, to each of the other Purchasers (i) as soon as practicableavailable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by a copy of each report and any definitive proxy statement of the Company filed with the Commission pursuant to under the Exchange ActAct or mailed to shareholders, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (Cii) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you CSFBC may reasonably request.
(ae) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date or, if earlier until such time as the Offered Securities are no longer restricted securities (as defined in Rule 144 under the Securities Act), the Company shall will, upon request, furnish to CSFBC, each of the other Purchasers and any holder of Offered Securities a copy of the restrictions on transfer applicable to the Offered Securities.
(f) During the period of two years after the Closing Date or, if earlier until such time as the Offered Securities are no longer restricted securities (as defined in Rule 144 under the Securities Act), the Company will not, and shall instruct will not permit any of its affiliates (as defined in Rule 144 under the Servicer not Securities Act) to, take resell any action inconsistent with of the Trust's ownership Offered Securities that have been reacquired by any of them.
(g) During the period of two years after the Closing Date or, if earlier until such Funded Contractstime as the Offered Securities are no longer restricted securities (as defined in Rule 144 under the Securities Act), other than as permitted by the Company will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is, or is required to be, registered under Section 8 of the Investment Company Act.
(h) The Company will pay all expenses incidental to the performance of its obligations under this Agreement, the Indenture and the Trust Registration Rights Agreement, including (i) the fees and expenses of the Trustee and its counsel; (ii) all expenses in connection with the execution, issuance, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Securities (as defined in the Registration Rights Agreement), the preparation and printing by the Company's advisors and printers of this Agreement, the Registration Rights Agreement, the Offered Securities, the Indenture, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and as applicable, the Exchange Securities; (iii) the cost of listing the Offered Securities and qualifying the Offered Securities for trading in The Portal(SM) Market ("PORTAL") and any expenses incidental thereto; (iv) the cost of any advertising approved in writing by the Company in connection with the issuance of the Offered Securities; (v) any reasonable expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities or the Exchange Securities for sale under the laws of such jurisdictions in the United States and Canada as CSFBC designates and the printing of memoranda relating thereto; (vi) for any fees charged by investment rating agencies for the rating of the Securities or the Exchange Securities; and (vii) for expenses incurred in distributing the Preliminary Offering Circulars and the Offering Document (including any amendments and supplements thereto) to the Purchasers. The Company will also pay or reimburse the Purchasers (to the extent incurred by them) for all travel expenses of the Purchasers and the Company's officers and employees and any other reasonable expenses of the Purchasers and the Company in connection with attending or hosting meetings between the Company and with prospective purchasers of the Offered Securities from the Purchasers.
(bi) On In connection with the offering, until CSFBC shall have notified the Company and the other Purchasers of the completion of the resale of the Offered Securities (which it agrees to do promptly after such completion), neither the Company nor any of its affiliates has or before will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it nor any of its affiliates will make bids or purchases for the related Prefunding Closing Datepurpose of creating actual, or apparent, active trading in, or of raising the price of, the Offered Securities.
(j) Other than notes evidencing indebtedness under the Credit Agreement or any of the Company's or its subsidiaries' securitization facilities, for a period of 180 days after the date of the initial offering of the Offered Securities by the Purchasers, the Company shall cause its computer records for will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any United States dollar-denominated debt securities issued or guaranteed by the related Prefunded Contracts to be marked to show Company and having a maturity of more than one year from the Trust's absolute ownership date of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale issue except issuances of Exchange Securities pursuant to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Registration Rights Agreement.
(xii) . The Company will file with not at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company exemption afforded by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j4(2) of the Servicing Agreement, addressed Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the Underwriters, with respect to the transfer offer and sale of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsOffered Securities.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative CSFBC promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the RepresentativeCSFBC's consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Shares by the Purchasers, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify CSFBC of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither CSFBC's consent to, nor the Purchasers' delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter CSFBC copies of the Registration Statementany preliminary offering circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as CSFBC requests, and the Company will furnish to CSFBC on the date hereof five copies of the Offering Document signed by a duly authorized officer of the Company, one of which will include the independent accountants' reports therein manually signed by such independent accountants. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to CSFBC (and, upon request, to each Underwriter may reasonably requestof the other Purchasers) and, upon request of holders and prospective purchasers of the Shares and the Exchange Debentures to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of such securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of such securities. The Company will pay the expenses of printing and distributing to the Purchasers (and such holders and prospective purchasers) all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Shares for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter CSFBC designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedShares by the Purchasers, however, provided that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect such state or subject itself to the suspension or the qualification of the Notes for sale taxation generally in any jurisdiction or the initiation or threat of any proceeding for such purposejurisdiction.
(ixd) For a During the period from the date of this Agreement until the retirement of the Notesfive years hereafter, the Company will furnish to the Underwriters copies CSFBC and, upon request, to each of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreementother Purchasers, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such statements year; and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you CSFBC and, upon request, to each of the other Purchasers (i) as soon as practicableavailable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by a copy of each report and any definitive proxy statement of the Company filed with the Commission pursuant to under the Exchange Act, any order of the Commission thereunder Act or pursuant mailed to a "no-action" letter from the staff of the Commission stockholders; and (Cii) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you CSFBC may reasonably request.
(ae) On or before During the Closing Date period (the Company shall cause its computer records relating to "Restriction Period") from the Funded Contracts to be marked to show date hereof until the Trust's absolute ownership earlier of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and three years after the Closing Date or the date on which all the Restricted Securities held by persons that are not affiliates of the Company shall may be sold without registration pursuant to Rule 144(k), the Company will, upon request, furnish to CSFBC, each of the other Purchasers and any holder of Restricted Securities a copy of the restrictions on transfer applicable to the Restricted Securities.
(f) During the Restriction Period, the Company will not, and shall instruct will not permit any of its affiliates (as defined in Rule 144 under the Servicer not Securities Act) to, take resell any action inconsistent with of the Trust's ownership Restricted Securities that have been reacquired by any of such Funded Contractsthem except pursuant to an effective Registration Statement under the Securities Act.
(g) During the Restriction Period, other than as permitted by the Company will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act, and is not, and will not be or become, a closed-end investment company required to be registered, but not registered, under the Investment Company Act.
(h) The Company will pay all expenses incidental to the performance of its obligations under this Agreement, the Indenture and the Trust Registration Rights Agreement, including (i) the fees and expenses of the Trustee, the registrar, transfer agent of the Shares, any custodian and their professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Shares, the Exchange Debentures and the Exchange Preferred Stock, the preparation and printing of this Agreement, the Shares, the Indenture, the Registration Rights Agreement, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Shares, the Exchange Preferred Stock and the Exchange Debentures; (iii) the cost of qualifying the Shares for trading in the PORTAL market and any expenses incidental thereto; and (iv) the cost of any advertising approved by the Company in connection with the issue of the Shares. The Company will also pay or reimburse the Purchasers (to the extent incurred by them) for any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Shares, the Exchange Debentures and the Exchange Preferred Stock for sale under the laws of such jurisdictions in the United States and Canada as CSFBC designates and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Restricted Securities, for any travel expenses of the Company's officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Shares and for expenses incurred in distributing preliminary offering circulars and the Offering Document (including any amendments and supplements thereto) to the Purchasers.
(bi) On In connection with the offering, until CSFBC shall have notified the Company and the other Purchasers of the completion of the resale of the Shares, neither the Company nor any of its affiliates has or before will, 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 any, Shares or Exchange Debentures or any securities of the related Prefunding Closing Datesame class as any of the foregoing (collectively, "Subject Securities") or attempt to induce any person to purchase any Subject Securities; and neither it 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, any Subject Securities.
(j) For a period of 90 days after the date of the initial offering of the Shares by the Purchasers, the Company shall cause its computer records for the related Prefunded Contracts will not offer, sell, contract to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trustsell, and after the related Prefunding Closing Datepledge or otherwise dispose of, the Company shall notdirectly or indirectly, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) The Company will or file with the Commission a registration statement under the Securities Act (other than as part contemplated by the Registration Rights Agreement) relating to (a) any exchangeable nonconvertible preferred stock or any other securities of a current report on Form 8-K each ABS Term Sheet provided to the Company by each which are substantially similar to any of the Underwriters and identified by each Restricted Securities, or (b) any other securities convertible into or exchange able or exercisable for exchangeable nonconvertible preferred stock or substantially similar securities of them as the Company, or publicly disclose the intention to make any such offer, sale, pledge or disposal, without the prior written consent of CSFBC, except for any such offer, sale, contract to sell, pledge or other disposition of (i) no later than any of the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or Restricted Securities, (ii) no later than two days following their date securities issued or delivered upon conversion, exchange or exercise of first use with respect to "collateral term sheets" (as such term is interpreted in any other securities of the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based Company outstanding on the Contract Pool informationdate hereof, (iii) by securities issued in connection with mergers, acquisitions or similar transactions or (iv) the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be materialExchange Preferred Stock. The Company shall file will not at any corrected ABS Term Sheets described in time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j4(2) of the Servicing Agreement, addressed Securities Act or the safe harbor of Regulation S there under to cease to be applicable to the Underwriters, with respect to the transfer offer and sale of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsRestricted Securities.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Samples: Purchase Agreement (American Radio Systems Corp /Ma/)
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative CSFBC promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the RepresentativeCSFBC's consent, which consent will shall not be unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Purchasers, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify CSFBC of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither CSFBC's consent to, nor the Purchasers' delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter CSFBC copies of the Registration Statementany preliminary offering circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as each Underwriter may CSFBC reasonably requestrequests. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act and any Offered Securities are outstanding, upon request of holders and prospective purchasers of the Offered Securities the Company will furnish or cause to be furnished, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate endeavor in good faith in cooperation with each Underwriter in arranging the Purchasers to arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter CSFBC designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedOffered Securities by the Purchasers, however, provided that the Company shall will not be obligated required to qualify as a foreign corporation or to do file a general consent to service of process or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not currently so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now otherwise so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purpose.
(ixd) For a During the period from of two years after the date of this Agreement until Closing Date, the retirement Company will not be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the NotesInvestment Company Act.
(e) During the period of ten years hereafter, the Company will furnish to the Underwriters copies CSFBC and, upon request, to each of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreementother Purchasers, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such statements year; and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you CSFBC and, upon request, to each of the other Purchasers (i) as soon as practicableavailable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by a copy of each report and any definitive proxy statement of the Company filed with the Commission pursuant to under the Exchange Act, any order of the Commission thereunder Act or pursuant mailed to a "no-action" letter from the staff of the Commission stockholders and (Cii) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you CSFBC may reasonably request.
(af) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date or, if earlier, until such time as the Offered Securities are no longer restricted securities (as defined in Rule 144 under the Securities Act), the Company shall notwill, upon request, furnish to CSFBC, each of the other Purchasers and shall instruct any holder of Offered Securities a copy of the Servicer not to, take any action inconsistent with restrictions on transfer applicable to the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust AgreementOffered Securities.
(bg) On The Company will pay all expenses incidental to the performance of its obligations under this Agreement, the Indenture, and the Registration Rights Agreement, including (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Securities (as defined in the Registration Rights Agreement), the preparation and printing of this Agreement, the Registration Rights Agreement, the Offered Securities, the Indenture, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and as applicable, the Exchange Securities; (iii) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities (iv) for any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities or before the related Prefunding Exchange Securities for sale under the laws of such jurisdictions in the United States and Canada as CSFBC designates and the printing of memoranda relating thereto, (v) for any fees charged by investment rating agencies for the rating of the Offered Securities or the Exchange Securities, and (vi) for expenses incurred in distributing preliminary offering circulars and the Offering Document (including any amendments and supplements thereto) to the Purchasers. The Company will also pay or reimburse the Purchasers (to the extent incurred by them) for all travel expenses of the Company's officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities from the Purchasers.
(h) In connection with the offering, until CSFBC shall have notified the Company and the other Purchasers of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it 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 Offered Securities.
(i) During the period beginning on the date hereof and continuing to and including the Closing Date, the Company shall cause its computer records for the related Prefunded Contracts will not offer, sell, contract to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to sell, pledge or otherwise dispose of, directly or indirectly, any United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the related Prefunded Contracts and the subsequent transfer date of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) issue. The Company will file with not at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company exemption afforded by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j4(2) of the Servicing Agreement, addressed Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the Underwriters, with respect to the transfer offer and sale of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsOffered Securities.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Home Depot Inc)
Certain Agreements of the Company. The Company agrees with the Underwriters several Initial Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). a. The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iii) The Company will advise the Representative CSFBC promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the RepresentativeCSFBC's consent, which consent will shall not be unreasonably be withheldwithheld or delayed. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Initial Purchasers, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify CSFBC of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither CSFBC's consent to, nor the Initial Purchasers' delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 5.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(vii) b. The Company will furnish to each Underwriter CSFBC copies of the Registration Statementany preliminary offering circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such 13 13 documents, in each case as soon as available and in such quantities as CSFBC reasonably requests, and the Company will furnish to CSFBC on the business day following the date hereof three copies of the Offering Circular (as defined below) signed by a duly authorized officer of the Company, one of which will include the independent accountants' reports therein manually signed by such independent accountants. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, for so long as any Offered Securities are outstanding, the Company will promptly furnish or cause to be furnished to CSFBC (and, upon request, to each Underwriter may reasonably request.
of the other Initial Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (viiior any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will cooperate with each Underwriter in arranging pay the expenses of printing and distributing to the Initial Purchasers all such documents.
c. The Company will arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter designates CSFBC shall reasonably designate and will continue such qualifications in effect so long as required for the distribution resale of the NotesOffered Securities by the Initial Purchasers; provided, however, provided that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposejurisdiction.
d. During the lesser of (ixi) For a the period from of seven years after the date of this Agreement until the retirement of the Notes, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture Closing Date and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(xii) So for so long as any of the Notes Offered Securities are outstanding, the Company will furnish to you CSFBC and, upon request, to each of the other Initial Purchasers, as soon as practicablepracticable after the end of each fiscal year, (A) all documents distributed, or caused a copy of its annual report to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by shareholders for such year; and the Company will furnish to CSFBC and, upon request, to each of the other Initial Purchasers (i) as soon as available, a copy of each report and any definitive proxy statement of the Company filed with the Commission pursuant under the 14 14 Exchange Act or mailed to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission shareholders and (Cii) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you CSFBC may reasonably request.
(a) On or before e. During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and three years after the Closing Date or, if earlier, until such time as the Offered Securities are no longer restricted securities (as defined in Rule 144 of the Securities Act), the Company shall notwill, upon request, furnish each of the Initial Purchasers and shall instruct any holder of Offered Securities a copy of the Servicer not to, take any action inconsistent with restrictions on transfer applicable to the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust AgreementOffered Securities.
(b) On or before f. During the related Prefunding period of three years after the Closing Date, the Company shall cause will not, and will not permit any of its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership directors to, resell any of the related Prefunded Contracts and shall cause the Servicer to mark its computer records Offered Securities that have been reacquired by any of them.
g. The Company has applied for the related Prefunded Contracts to show the sale to the Company an order under Section 3(b)(2) of the related Prefunded Contracts and the subsequent transfer Investment Company Act declaring that it is not an investment company by virtue of the related Prefunded Contracts to fact that it is primarily engaged in a business other than that of investing, reinvesting, owning, holding or trading in securities or, alternatively, for an order under Section 6(c) of the Trust, and after Investment Company Act exempting it from all provisions of the related Prefunding Closing DateInvestment Company Act. In the event such an order is not granted, the Company shall not, and shall instruct the Servicer not to, will take any such action inconsistent consistent with the Trust's ownership of Indenture as may be prudent to seek to avoid becoming subject to regulation under the Investment Company Act; however, there is no assurance that under such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreementcircumstances such regulation could be avoided.
(xii) h. The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided pay all expenses incidental to the Company by each performance of its obligations under the Underwriters and identified by each of them as such Operative Documents, including (i) no later than the date that fees and expenses of the Prospectus Supplement is filed with respect to "computational materials" Trustee and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or Warrant Agent, and the professional advisers of each; (ii) no later than two all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities, the preparation and printing of the Operative Documents, the Offered Securities, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities; and (iii) the cost of qualifying the Offered Securities for trading in the Private Offerings, Resale and Trading through Automated 15 15 Linkages (PORTAL) market and any expenses incidental thereto. The Company will also pay or reimburse the Initial Purchasers (to the extent incurred by them) for any reasonable expenses (including reasonable fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities for sale under the laws of such jurisdictions in the United States and Canada as CSFBC reasonably designates and the printing of memoranda relating thereto, if any, for all travel expenses of the Initial Purchasers and the Company's officers and employees and any other expenses of the Initial Purchasers and the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities from the Initial Purchasers and for expenses incurred in distributing preliminary offering circulars and the Offering Document (including any amendments and supplements thereto).
i. In connection with the offering, until CSFBC shall have notified the Company and the other Initial Purchaser of the completion of the resale of the Offered Securities, neither the Company nor any of its directors has or will, either alone or with one or more other persons, bid for or purchase for any account in which it or any of its directors has a beneficial interest any Offered Securities or the Common Stock or attempt to induce any person to purchase any Offered Securities for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Offered Securities.
j. For a period of 150 days following their after the date of first use with respect the initial offering of the Offered Securities by the Initial Purchasers, neither the Company nor any of its subsidiaries will offer, sell, contract to "collateral term sheets" (as sell, pledge or otherwise dispose of, directly or indirectly, any United States dollar denominated debt securities issued or guaranteed by the Company or any such term is interpreted in subsidiary and having a maturity of more than one year from the No-Action Letters); provided, however, that prior to such filing date of an ABS Term Sheet issue (other than any ABS Term Sheets that are not based on the Contract Pool information) by Offered Securities or in connection with the Company, each Exchange Offer or the Shelf Registration Statement and other than in connection with the creation of a Joint Venture (as defined in the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if anyIndenture), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file will not at any corrected ABS Term Sheets described in time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract 16 16 or disposition would cause the exemption afforded by Section 4(vi4(2) as soon as practicable following receipt thereofof the Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the offer and sale of the Offered Securities.
(xiii) k. The Company will use its reasonable best efforts to cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required Offered Securities to be furnished pursuant to Section 2.01(j) eligible for trading on the PORTAL trading system of the Servicing AgreementNational Association of Securities Dealers, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsInc. upon issuance.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Electronic Retailing Systems International Inc)
Certain Agreements of the Company. The Company agrees agrees, with the Underwriters several Initial Purchasers that:
(a) Until the later of (i) Immediately following the execution completion of this Agreement, the Company will prepare a Prospectus Supplement setting forth distribution of the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased Offered Securities by the Underwriters, the initial public offering price, the selling concessions Initial Purchasers and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the NotesClosing Date, the Company will not amend or supplement the General Disclosure Package and the Final Memorandum or otherwise distribute or refer to any written communication (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of an offer to buy the Offered Securities (other than the General Disclosure Package, the Recorded Road Show and the Final Memorandum) or file any amendment of report with the Registration Statement Commission under the Exchange Act that is incorporated by reference into the General Disclosure Package or supplement to the Prospectus Final Memorandum unless the Company has Initial Purchasers shall previously have been advised and furnished the Representative with a copy for its review a reasonable period of time prior to filing the proposed amendment, supplement or report and will not file any such proposed amendment or supplement without as to which the Representative's Initial Purchasers shall have given their consent, which consent will shall not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iii) The Company will advise the Representative promptly of any proposal to amend delayed or supplement the Registration Statement as filed or the Prospectus, and will not effect such amendment or supplement without the Representative's consent, which consent will not unreasonably be withheldconditioned. The Company will also advise promptly, upon the Representative promptly reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any request amendments or supplements to the General Disclosure Package and the Final Memorandum that may be necessary or advisable in connection with the resale of the Offered Securities by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued orderInitial Purchasers.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v1) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actsale by the Initial Purchasers of the Offered Securities, any event occurs or information becomes known as a result of which the Prospectus General Disclosure Package and the Final Memorandum as then amended or supplemented would include an any untrue statement of a material fact fact, or omit to state any a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Prospectus General Disclosure Package and the Final Memorandum to comply with the Actapplicable law, the Company will promptly notify the Representative and will prepare and file with prepare, at the Commission (subject to expense of the Representative's prior review pursuant to paragraph (ii) of this Section 5) Company, an amendment or supplement which will correct to the General Disclosure Package and the Final Memorandum that corrects such statement or omission or an amendment effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the General Disclosure Package as then amended or 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, not misleading or any Issuer Written Communication would conflict with the General Disclosure Package as then amended or supplemented, or (ii) it is necessary to amend or supplement which any of the General Disclosure Package so that any of the General Disclosure Package or any Issuer Written Communication will effect such compliance.
(vi) As soon as practicablecomply with law, the Company will cause immediately notify the Trust Representative and forthwith prepare and, subject to make generally available paragraph (a) above, furnish to the Noteholders and the holders Representative such amendments or supplements to any of the Residual Interest Instruments General Disclosure Package or any Issuer Written Communication (it being understood that any such amendments or supplements may take the form of an amended or supplemented Final Memorandum) as may be necessary so that the statements in any of the Trust an earnings statement General Disclosure Package as so amended or statements supplemented will not, in light of the Trust covering a period of at least 12 months beginning after circumstances under which they were made, be misleading or so that any Issuer Written Communication will not conflict with the Closing Date which General Disclosure Package or so that the General Disclosure Package or any Issuer Written Communication as so amended or supplemented will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereundercomply with law.
(viic) The Company will furnish to each Underwriter the Representative copies of the Registration StatementGeneral Disclosure Package, any Issuer Written Communication and the Prospectus and Final Memorandum or any preliminary Prospectus Supplement related thereto and all amendments and supplements to such documentsamendment or supplement thereto, in each case as soon as available and in such quantities as each Underwriter may the Representative reasonably requestrequests. The Company will pay the expenses of printing and distributing to the Initial Purchasers all such documents.
(viiid) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as each Underwriter the Representative designates and will continue such qualifications in effect so long as required for the distribution distribution.
(e) For the period specified below (the “Lock-Up Period”), the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to, any additional shares of Common Stock regardless of class (the “Lock-Up Securities”) or securities convertible into or exchangeable or exercisable, in each case during the Lock-Up Period, for any shares of its Lock-Up Securities, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of the NotesRepresentative, except (i) the sale by the Company of the Offered Securities hereunder, (ii) grants of equity awards pursuant to the terms of a plan in effect on the date hereof or disclosed in the General Disclosure Package, (iii) issuances of Lock-Up Securities pursuant to the exercise of such awards or the exercise of any other equity awards outstanding on the date hereof, (iv) the filing of any amendment or supplements to the Company’s registration statements on Form S-8 (Registration Nos. 333-130340, 333-140197, 333-142679, 333-150789, 333-172477, 333-178027, 333-179833 and 333-186821), (v) the filing of any registration statement on Form S-8 to register shares of its Lock-Up Securities reserved for issuance under the Company’s employee stock plans, (vi) up to an aggregate maximum of 5,000,000 shares of its Lock-Up Securities or other rights to acquire its Lock-Up Securities which the Company may issue in connection with transactions with others (a “Third Party”), including in acquisitions; provided, however, that with respect to all such shares, each Third Party must enter into an agreement that provides that, for the Lock-Up Period, each Third Party will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any shares of Lock-Up Securities or securities convertible into or exchangeable or exercisable for any shares of Lock-Up Securities, or publicly disclose the intention to make any such offer, sale, pledge or disposition without the prior written consent of the Representative, (vii) the issuance of shares of Lock-Up Securities in exchange for, or on conversion pursuant to the terms of, indebtedness of the Company outstanding on the date hereof, and (viii) the issuance of Lock-Up Securities upon the exercise of warrants of the Company outstanding on the date hereof. The initial Lock-Up Period for the shareholders listed in Schedule C commenced on May 20, 2013 and the initial Lock-Up Period for the Company commenced on May 22, 2013, and each will continue and include the date that is 90 days after the date of the Final Memorandum.
(f) Except in accordance with the provisions of the lock-up letters substantially in the forms attached as Annex A, for the period specified in such letter, the Company shall not be obligated allow the persons listed in Schedule C to qualify sell or otherwise transfer, without the prior written consent of the Representative, any Lock-Up Securities or securities convertible into or exchangeable or exercisable for any shares of Lock-Up Securities.
(g) The Company agrees with the several Initial Purchasers that the Company will pay all expenses incident to do business the performance of the obligations of the Company under this Agreement, for expenses incurred in connection with qualification of the Offered Securities for sale and determination of their eligibility for investment under the laws of such jurisdictions as the Representative designates and the preparation and printing of memoranda relating thereto, for fees and disbursements of counsel to the Initial Purchasers up to $100,000 in the aggregate, for any jurisdiction fees charged by investment rating agencies for the rating of Offered Securities, for expenses incurred in which it is distributing the Final Memorandum (including any amendments and supplements thereto) to the Initial Purchasers and for expenses incurred for preparing, printing and distributing any Issuer Written Communication to investors or prospective investors, any applicable listing or other fees, all fees and expenses of the Trustee or any agent thereof, and for any travel expenses of the Company’s officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities, excluding the cost of any aircraft chartered in connection with attending or hosting such meetings (such travel and other expenses in connection with such meetings, collectively, the “Road Show Expenses”).
(h) The Company shall apply the net proceeds from the sale of the Offered Securities being sold by the Company as set forth in the General Disclosure Package, and, except as disclosed in the General Disclosure Package, the Company does not currently so qualified or intend to take use any action which would subject it of the proceeds from the sale of the Offered Securities hereunder to general or unlimited service repay any outstanding debt owed to any affiliate of process in any jurisdiction where it is not now so subject. Initial Purchaser.
(i) The Company will promptly advise the Underwriters not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to result in stabilization or manipulation of the receipt by price of any securities of the Company of any notification with respect to facilitate the suspension sale or the qualification resale of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposeOffered Securities.
(ixj) For a period from the date of this Agreement until the retirement None of the NotesCompany or any of its Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any “security” (as defined in the Company will furnish to Act) that could be integrated with the Underwriters copies sale of the annual statements of compliance delivered to Offered Securities in a manner which would require the Indenture Trustee pursuant to Section 3.09 registration under the Act of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectivelyOffered Securities.
(xk) So The Company will not, and will not permit any of the subsidiaries of the Company or their respective Affiliates or persons acting on their behalf to, engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Offered Securities in any manner involving a public offering within the meaning of Section 4(a)(2) of the Act.
(l) For so long as any of the Notes Offered Securities or the Underlying Securities issuable upon conversion of the Offered Securities are outstanding“restricted securities” within the meaning of Rule 144(a)(3) under the Act, the Company will furnish make available at its expense, upon request, to you as soon as practicableany holder of such Offered Securities or Underlying Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Act, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by unless the Company with the Commission pursuant is then subject to Section 13 or 15(d) of the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably request.
(am) On For so long as the Offered Securities or before the Closing Date Underlying Securities issuable upon conversion of the Offered Securities are “restricted securities” within the meaning of Rule 144(a)(3) under the Act, the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall will not, and shall instruct will use its best efforts not to permit any of its affiliates (as defined in Rule 144 under the Servicer not Securities Act) to, take resell any action inconsistent of the Offered Securities or Underlying Securities that have been acquired by any of them in a manner that would recommence the applicable holding period with respect to the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture Offered Securities and the Trust AgreementUnderlying Securities under Rule 144.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xiin) The Company will file with use its best efforts to permit the Commission as part of a current report on Form 8Non-K each ABS Term Sheet provided to the Company by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company Affiliate Securities to be material. eligible for clearance and settlement through The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereofDepository Trust Company.
(xiiio) The Company will cause Xxxxxxx Xxxxx LLP use its best efforts to deliver to maintain the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) listing of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer Maximum Number of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP Underlying Securities on the Closing Date with respect to the Funded ContractsNasdaq Global Select Market for as long as any Offered Securities are outstanding.
(xivp) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Datereserve and keep available at all times, free of preemptive rights, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) Maximum Number of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing AgreementUnderlying Securities.
Appears in 1 contract
Samples: Purchase Agreement (Total S.A.)
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iii1) The Company will advise the Representative DLJ and SSB promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the Representativeeach of DLJ's and SSB's consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Purchasers, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify DLJ and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) SSB of this Section 5) such event and promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither DLJ's nor SSB's consent to, nor the Purchasers' delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(vii2) The Company will furnish to each Underwriter of DLJ and SSB copies of the Registration Statementany preliminary offering circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as DLJ or SSB requests, and the Company will furnish to each Underwriter may reasonably of DLJ and SSB on the date hereof two copies of the Offering Document signed by a duly authorized officer of the Company, one of which will include the independent accountants' reports therein manually signed by such independent accountants. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to DLJ (and, upon request, to each of the other Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of such securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of such securities. The Company will pay the expenses of printing and distributing to the Purchasers (and such holders and prospective purchasers) all such documents.
(viii3) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter DLJ or SSB designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedOffered Securities by the Purchasers, however, provided that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect such state or subject itself to the suspension or the qualification of the Notes for sale taxation generally in any jurisdiction or the initiation or threat of any proceeding for such purposejurisdiction.
(ix4) For a During the period from the date of this Agreement until the retirement of the Notesfive years hereafter, the Company will furnish to the Underwriters copies each of DLJ and SSB and, upon request, to each of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreementother Purchasers, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such statements year; and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you each of DLJ and SSB and, upon request, to each of the other Purchasers (i) as soon as practicableavailable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by a copy of each report and any definitive proxy statement of the Company filed with the Commission pursuant to under the Exchange Act, any order of the Commission thereunder Act or pursuant mailed to a "no-action" letter from the staff of the Commission stockholders; and (Cii) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental as DLJ or regulatory authority which is otherwise publicly available as you SSB may reasonably request.
(a5) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts will, upon request, furnish to be marked to show the Trust's absolute ownership DLJ, SSB, each of the related Prefunded Contracts other Purchasers and shall cause any holder of Offered Securities a copy of the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Offered Securities.
(6) During the period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and two years after the related Prefunding Closing Date, the Company shall will not, and shall instruct will not permit any of its affiliates (as defined in Rule 144 under the Servicer not Securities Act) to, take resell any action inconsistent with of the Trust's ownership Offered Securities that have been reacquired by any of such Prefunded Contractsthem.
(7) During the period of two years after the Closing Date, other than as permitted by the Company will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act, and is not, and will not be or become, a closed-end investment company required to be registered, but not registered, under the Investment Company Act.
(8) The Company will pay all expenses incidental to the performance of its obligations under this Agreement, the Indenture and the Trust Registration Rights Agreement, including (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities, the preparation and printing of this Agreement, the Offered Securities, the Indenture, the Registration Rights Agreement, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities; (iii) the cost of qualifying the Offered Securities for trading in the PORTAL market and any expenses incidental thereto; and (iv) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities. The Company will also pay or reimburse the Purchasers (to the extent incurred by them) for any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities for sale under the laws of such jurisdictions in the United States and Canada as DLJ or SSB designates and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Offered Securities, for any travel expenses of the Company's officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities and for expenses incurred in distributing preliminary offering circulars and the Offering Document (including any amendments and supplements thereto) to the Purchasers.
(xii9) The In connection with the offering, until both DLJ and SSB shall have notified the Company and the other Purchasers of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or any securities which would be considered "reference securities" (as defined in Rule 100 of Regulation M under the Exchange Act) or attempt to induce any person to purchase any Offered Securities or "reference securities".
(10) For a period of 45 days after the date of the initial offering of the Offered Securities by the Purchasers, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or (except as contemplated in the Registration Rights Agreement) file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided registration statement under the Securities Act relating to any indebtedness or any other debt securities issued or guaranteed by the Company by each which, in either case, are substantially similar to any of the Underwriters and identified by each Offered Securities or have a maturity of them as such (i) no later more than one year from the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) of issue, or (iib) no later than two days following their date any other securities convertible into or exchangeable or exercisable for substantially similar securities of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, or publicly disclose the intention to make any such offer, sale, pledge or disposal, without the prior written consent of each of the Underwriters must comply with their obligations DLJ and SSB, except pursuant to Section 4 the Registration Rights Agreement and except for any such offer, sale, contract to sell, pledge or other disposition of any of the Company must receive a letter from Xxxxx Xxxxxxxx LLPOffered Securities, certified public accountants, satisfactory in form and substance except for the filing of any shelf registration statement relating to the Companypotential primary offering, among other securities, of debt securities or warrants to the effect that purchase such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing securities on a current report on Form 8-K delayed basis pursuant to Section 4 and, if Rule 415 that does not disclose the Company then terms of any specific proposed sale thereof or the terms of any specific series of securities so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be materialregistered. The Company shall file will not at any corrected ABS Term Sheets described in time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j4(2) of the Servicing Agreement, addressed Securities Act to cease to be applicable to the Underwriters, with respect offer and sale of the Offered Securities to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsPurchasers.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Certain Agreements of the Company. The Company Each of the Issuers, jointly and severally, agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative CSFB promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the RepresentativeCSFB's consent, which consent will shall not be unreasonably be withheldwithheld or delayed. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Purchasers, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify CSFB of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission or an effect such compliance. Neither CSFB 's consent to, nor the Purchasers' delivery of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter CSFB copies of the Registration Statementany preliminary offering circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as each Underwriter may CSFB reasonably requests. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to CSFB (and, upon request, to the other Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as each Underwriter CSFB reasonably designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; provided, however, that the Company shall not be obligated to qualify to do business in any jurisdiction in which it is not currently so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt Offered Securities by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposePurchasers.
(ixd) For a During the period from the date of this Agreement until the retirement of the Notestwo years hereafter, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered CSFB and, upon request, to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreementother Purchasers, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such statements year; and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you CSFB and, upon request, to the other Purchasers, as soon as practicableavailable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by a copy of each other report and any definitive proxy statement of the Company filed with the Commission pursuant to under the Exchange Act, any order of the Commission thereunder or pursuant mailed to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably requeststockholders.
(ae) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for will, upon request, furnish to CSFB and the related Prefunded Contracts to be marked to show the Trust's absolute ownership other Purchasers and any holder of Offered Securities a copy of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Offered Securities.
(f) During the period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and two years after the related Prefunding Closing Date, the Company shall will not, and shall instruct will not permit any of its affiliates (as defined in Rule 144 under the Servicer not Securities Act) to, take resell any action inconsistent with of the Trust's ownership Offered Securities that have been reacquired by any of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreementthem.
(xiig) During the period of two years after the Closing Date, each of the Issuers will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(h) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided pay all expenses incidental to the Company by each performance of its obligations under this Agreement and the Underwriters and identified by each of them as such Indenture, including (i) no later than the date that fees and expenses of the Prospectus Supplement is filed with respect to "computational materials" Trustee and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or its professional advisers; (ii) no later than two days following their date of first use all expenses in connection with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); providedexecution, howeverissuance, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Companyauthentication, each packaging and initial delivery of the Underwriters must comply with their obligations pursuant to Section 4 Offered Securities, the preparation and printing of this Agreement, the Company must receive a letter from Xxxxx Xxxxxxxx LLPIndenture, certified public accountantsthe Offered Securities, satisfactory in form the Offering Document and substance amendments and supplements thereto, and any other document relating to the Companyissuance, to offer, sale and delivery of the effect that such accountants have performed certain specified procedures, all Offered Securities; (iii) the cost of which have been agreed to by listing the Company, as a result Offered Securities and qualifying the Offered Securities for trading in The Portals'" Market ("PORTAL") and any expenses incidental thereto; (iv) the cost of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed any advertising approved by the Company in connection with the issue of the Offered Securities; (v) any expenses (including reasonable fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities for sale under the laws of such jurisdictions as CSFB designates and the printing of memoranda relating thereto; (vi) any fees charged by investment rating agencies for the rating of the Offered Securities; and (vii) expenses incurred in distributing the Offering Document (including any amendments and supplements thereto) to be materialthe Purchasers. The Company shall file will also pay for any corrected ABS Term Sheets described travel expenses of the Company's officers and employees and any other expenses of the Company in Section 4(vi) as soon as practicable following receipt thereofconnection with attending or hosting meetings with prospective purchasers of the Offered Securities.
(xiiii) The In connection with the offering, until CSFB shall have notified the Company and the other Purchasers of the completion of the resale by the Purchasers of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it nor any of its affiliates will cause Xxxxxxx Xxxxx LLP make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Offered Securities.
(j) During the period beginning on the date hereof and continuing to deliver to and including the Underwriters on or before the Prefunding Closing Date, none of the opinions required Issuers will offer, sell, contract to be furnished pursuant sell, announce their intention to sell, pledge or otherwise dispose of, directly or indirectly, any United States dollar denominated debt securities issued or guaranteed by any of the Issuers and having a maturity of more than one year from the date of issue. None of the Issuers will at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 2.01(j4(2) of the Servicing Agreement, addressed Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the Underwriters, with respect to the transfer offer and sale of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsOffered Securities.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative Credit Suisse promptly of any proposal to amend or supplement the Registration Statement as filed Preliminary or the Prospectus, Final Offering Circular and will not effect such amendment or supplement supplementation without the Representative's consent, Credit Suisse’s consent (which consent will shall not be unreasonably be withheldwithheld or delayed). The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Purchasers, any there occurs an event occurs or development as a result of which any document included in the Prospectus as then amended Preliminary or supplemented Final Offering Circular, the General Disclosure Package or any Supplemental Marketing Material included or would include an untrue statement of a material fact or omitted or would omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madeprevailing at such time, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify Credit Suisse of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither Credit Suisse’s consent to, nor the Purchasers’ delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter Credit Suisse copies of the Registration StatementPreliminary Offering Circular, each other document comprising a part of the General Disclosure Package, the Prospectus and any preliminary Prospectus Supplement related thereto and Final Offering Circular, all amendments and supplements to such documentsdocuments and each item of Supplemental Marketing Material, in each case as soon as available and in such quantities as Credit Suisse reasonably requests. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, and any Offered Securities remain “restricted securities” within the meaning of the Securities Act, the Company will promptly furnish or cause to be furnished to Credit Suisse (and, upon request, to each Underwriter may reasonably requestof the other Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging for use all commercially reasonable efforts to obtain the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter Credit Suisse designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedOffered Securities by the Purchasers, however, provided that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposestate.
(ixd) For a During the period from of two years after the date of this Agreement until Closing Date, the retirement Company will, upon request, furnish to Credit Suisse, each of the Notesother Purchasers and any holder of Offered Securities a copy of the restrictions on transfer applicable to the Offered Securities.
(e) During the period of five years hereafter, unless such documents are available electronically via the XXXXX system maintained by the Commission, the Company will furnish to the Underwriters copies Credit Suisse and, upon request, to each of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreementother Purchasers, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such statements year; and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you Credit Suisse and, upon reasonable request, to each of the other Purchasers (i) as soon as practicableavailable, a copy of each report and any definitive proxy statement of the Company mailed to stockholders, and (Aii) all documents distributed, or caused the information required to be distributedprovided to the Trustee for the Offered Securities pursuant to the Indenture.
(f) Subject to the Purchasers’ compliance with its representations and warranties and agreements set forth in Section 4 hereof, the Company consents to the use of the Preliminary Offering Circular, any other documents comprising any part of the General Disclosure Package, the Final Offering Circular and any amendments and supplements thereto required pursuant to Section 5(a) hereto, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably requestPurchasers.
(ag) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause will not, and will not permit any of its computer records for affiliates (as defined in Rule 144 under the related Prefunded Contracts to be marked to show the Trust's absolute ownership Securities Act) to, resell any of the related Prefunded Contracts and shall cause Offered Securities that have been reacquired by any of them, unless such Offered Securities are resold in a transaction registered under the Servicer to mark its computer records for Securities Act.
(h) During the related Prefunded Contracts to show the sale to the Company period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and two years after the related Prefunding Closing Date, the Company shall notwill not be or become, and shall instruct an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust AgreementInvestment Company Act.
(xiii) The Company agrees to pay all expenses incidental to the performance of its obligations under the Operative Documents including (i) the fees and expenses of the Trustee and their respective professional advisers, (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Securities (as defined in the Registration Rights Agreement), the preparation and printing of the Preliminary Offering Circular, any other documents comprising any part of the General Disclosure Package, the Final Offering Circular, all amendments and supplements thereto, each item of Supplemental Marketing Material and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and as applicable the Exchange Securities, (iii) the cost of qualifying the Offered Securities for trading in The PortalSM Market (“PORTAL”) of The Nasdaq Stock Market, Inc. and any expenses incidental thereto, (iv) for any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities or the Exchange Securities for sale under the state securities laws as provided in Section 5(c) and the printing of memoranda relating thereto, (v) for any fees charged by investment rating agencies for the rating of the Offered Securities or the Exchange Securities, and (vi) for expenses incurred in distributing the Preliminary Offering Circular, any other documents comprising any part of the General Disclosure Package, the Final Offering Circular (including any amendments and supplements thereto) and any Supplemental Marketing Material to the Purchasers.
(j) In connection with the offering, until Credit Suisse shall have notified the Company and the other Purchasers, which notice shall be promptly provided upon the written request of the Company, of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it 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 Offered Securities.
(k) The Company will file with apply the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to net proceeds from the Company by each sale of the Underwriters and identified Offered Securities to be sold by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined it hereunder substantially in accordance with such agreed upon proceduresthe description set forth in the Final Offering Circular under the caption “Use of Proceeds.”
(l) Except as stated in this Agreement, is accurate except as the General Disclosure Package or the Final Offering Circular, neither the Company nor any of its affiliates have taken, nor will any of them take, directly or indirectly, any action designed to such matters or that are not deemed by might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereoffacilitate the sale or resale of the Offered Securities.
(xiiim) The Company will cause Xxxxxxx Xxxxx LLP use its best efforts to deliver to permit the Underwriters on or before the Prefunding Closing Date, the opinions required Offered Securities to be furnished pursuant designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to Section 2.01(j) of trading in PORTAL and to permit the Servicing Agreement, addressed Offered Securities to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contractsbe eligible for clearance and settlement through DTC.
(xivn) The Company agrees not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act), that would be integrated with the sale of the Offered Securities in a manner that would require the registration under the Securities Act of the sale to the Purchasers or the resale of the Offered Securities.
(o) The Company agrees to comply with all the terms and conditions of the Operative Documents and all agreements set forth in the representation letter of the Company to DTC relating to the approval of the Offered Securities by DTC for “book entry” transfer.
(p) The Company will deliver do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Underwriters (i) on or before each Prefunding Closing Date, and to satisfy all conditions precedent to the Officer's Certificate Purchasers’ obligations hereunder to purchase the Offered Securities.
(q) In connection with the sale of the Offered Securities to the Purchasers, the Company will file the notice on Form D required by Rule 503 under the Securities Act within the time required by such Rule and certificate from each secured creditor required to otherwise in compliance with such Rule. A copy of such notice shall be furnished pursuant promptly to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing AgreementCredit Suisse.
Appears in 1 contract
Samples: Purchase Agreement (Dynegy Inc /Il/)
Certain Agreements of the Company. The Company Each of the Issuers, jointly and severally, agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative CSFBC promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the RepresentativeCSFBC's consent, which consent will shall not be unreasonably be withheldwithheld or delayed. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Purchasers, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify CSFBC of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission or an effect such compliance. Neither CSFBC's consent to, nor the Purchasers' delivery of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter CSFBC copies of the Registration Statementany preliminary offering circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as each Underwriter may CSFBC reasonably requests. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to CSFBC (and, upon request, to the other Purchaser) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as each Underwriter CSFBC reasonably designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; provided, however, that the Company shall not be obligated to qualify to do business in any jurisdiction in which it is not currently so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt Offered Securities by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposePurchasers.
(ixd) For a During the period from the date of this Agreement until the retirement of the Notestwo years hereafter, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered CSFBC and, upon request, to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreementother Purchaser, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such statements year; and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you CSFBC and, upon request, to the other Purchaser, as soon as practicableavailable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by a copy of each other report and any definitive proxy statement of the Company filed with the Commission pursuant to under the Exchange Act, any order of the Commission thereunder or pursuant mailed to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably requeststockholders.
(ae) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for will, upon request, furnish to CSFBC and the related Prefunded Contracts to be marked to show the Trust's absolute ownership other Purchaser and any holder of Offered Securities a copy of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Offered Securities.
(f) During the period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and two years after the related Prefunding Closing Date, the Company shall will not, and shall instruct will not permit any of its affiliates (as defined in Rule 144 under the Servicer not Securities Act) to, take resell any action inconsistent with of the Trust's ownership Offered Securities that have been reacquired by any of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreementthem.
(xiig) During the period of two years after the Closing Date, each of the Issuers will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(h) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided pay all expenses incidental to the Company by each performance of its obligations under this Agreement and the Underwriters and identified by each of them as such Indenture, including (i) no later than the date that fees and expenses of the Prospectus Supplement is filed with respect to "computational materials" Trustee and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or its professional advisers; (ii) no later than two days following their date of first use all expenses in connection with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); providedexecution, howeverissuance, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Companyauthentication, each packaging and initial delivery of the Underwriters must comply with their obligations pursuant to Section 4 Offered Securities, the preparation and printing of this Agreement, the Company must receive a letter from Xxxxx Xxxxxxxx LLPIndenture, certified public accountantsthe Offered Securities, satisfactory in form the Offering Document and substance amendments and supplements thereto, and any other document relating to the Companyissuance, to offer, sale and delivery of the effect that such accountants have performed certain specified procedures, all Offered Securities; (iii) the cost of which have been agreed to by listing the Company, as a result Offered Securities and qualifying the Offered Securities for trading in The PortalSM Market (APORTAL@) and any expenses incidental thereto; (iv) the cost of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed any advertising approved by the Company in connection with the issue of the Offered Securities; (v) any expenses (including reasonable fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities for sale under the laws of such jurisdictions as CSFBC designates and the printing of memoranda relating thereto; (vi) any fees charged by investment rating agencies for the rating of the Offered Securities; and (vii) expenses incurred in distributing preliminary offering circulars and the Offering Document (including any amendments and supplements thereto) to be materialthe Purchasers. The Company shall file will also pay for any corrected ABS Term Sheets described travel expenses of the Company's officers and employees and any other expenses of the Company in Section 4(vi) as soon as practicable following receipt thereofconnection with attending or hosting meetings with prospective purchasers of the Offered Securities.
(xiiii) The In connection with the offering, until CSFBC shall have notified the Company and the other Purchaser of the completion of the resale by the Purchasers of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it nor any of its affiliates will cause Xxxxxxx Xxxxx LLP make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Offered Securities.
(j) During the period beginning on the date hereof and continuing to deliver to and including the Underwriters on or before the Prefunding Closing Date, none of the opinions required Issuers will offer, sell, contract to be furnished pursuant sell, announce their intention to sell, pledge or otherwise dispose of, directly or indirectly, any United States dollar denominated debt securities issued or guaranteed by any of the Issuers and having a maturity of more than one year from the date of issue. None of the Issuers will at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 2.01(j4(2) of the Servicing Agreement, addressed Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the Underwriters, with respect to the transfer offer and sale of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsOffered Securities.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Terex Corp)
Certain Agreements of the Company. The Company agrees with the Underwriters Purchaser that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative Purchaser promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the RepresentativePurchaser's consent, which consent will not be unreasonably be withheldwithheld or delayed. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Securities by the Purchaser, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify the Purchaser of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither the Purchaser 's consent to, nor its delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter the Purchaser copies of the Registration StatementPreliminary Offering Circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as reasonably available and in such quantities as each Underwriter may the Purchaser reasonably requestrequests, and the Company will furnish to the Purchaser on the date hereof two copies of the Offering Document signed by a duly authorized officer of the Company, one of which will include the independent accountants' reports therein manually signed by such independent accountants. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to the Purchaser and, upon request of holders and prospective purchasers of the Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Securities. The Company will pay the expenses of printing and distributing to the Purchaser, such holders and prospective purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Securities for sale and the determination of their eligibility for investment under the laws of such applicable jurisdictions in the United States and Canada as each Underwriter the Purchaser reasonably designates and the Company agrees to and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedSecurities by the Purchaser, however, provided that the Company shall will not be obligated required to qualify as a foreign corporation or dealer in securities or to do business file a general consent to service of process in any such jurisdiction or subject itself to taxation in any jurisdiction in which it is not currently so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now otherwise so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purpose.
(ixd) For a During the period from the date of this Agreement until the retirement of the Notestwo years hereafter, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing AgreementPurchaser, as soon as practicable after such statements and reports are furnished available, a copy of each description of reports, notices or communications sent to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstandingsecurityholders. From time to time, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, Purchaser such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you the Purchaser may reasonably request.
(ae) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date or until the Securities are registered under the Securities Act, the Company shall notwill, upon request, furnish to the Purchaser and shall instruct any holder of Securities a copy of the Servicer not to, take any action inconsistent with restrictions on transfer applicable to the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust AgreementSecurities.
(bf) On or before During the related Prefunding period of two years after the Closing Date, the Company shall cause will not, and will not permit any of its computer records for affiliates (as defined in Rule 144 under the related Prefunded Contracts to be marked to show the Trust's absolute ownership Securities Act) to, resell any of the related Prefunded Contracts and shall cause Securities that have been reacquired by any of them.
(g) During the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and two years after the related Prefunding Closing Date, the Company shall notwill not be or become, and shall instruct an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Servicer not toInvestment Company Act.
(h) The Company will pay all expenses incidental to the performance of its obligations under this Agreement, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Registration Rights Agreement, including (i) the fees and expenses of the Trustee and its counsel; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Securities and, as applicable, the Exchange Securities (as defined in the Registration Rights Agreement), the preparation and printing of this Agreement, the Registration Rights Agreement, the Securities, the Indenture, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Securities and as applicable, the Exchange Securities; (iii) the cost of any advertising approved by the Company in connection with the issue of the Securities; (iv) any reasonable expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Securities or the Exchange Securities for sale under the laws of such jurisdictions in the United States and Canada as the Purchaser designates and the printing of memoranda relating thereto; (v) any fees charged by investment rating agencies for the rating of the Securities or the Exchange Securities; and (vi) reasonable expenses incurred in distributing the Preliminary Offering Circular and the Offering Document (including any amendments and supplements thereto) to the Purchaser. The Company will also pay or reimburse the Purchaser (to the extent incurred by them) for all travel expenses of the Purchaser and the Company's officers and employees and any other expenses of the Purchaser and the Company in connection with attending or hosting meetings with prospective purchasers of the Securities from the Purchaser.
(xiii) The In connection with the offering, until the Purchaser shall have notified the Company of the completion of the resale of the Securities, neither the Company nor any of its affiliates has or will, 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 any Securities or attempt to induce any person to purchase any Securities; and neither it 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 Securities.
(j) For a period of 180 days after the date of the initial offering of the Securities by the Purchaser, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission as part of a current report on Form 8registration statement under the Securities Act relating to, any United States dollar-K each ABS Term Sheet provided to denominated debt securities issued or guaranteed by the Company by each and having a maturity of the Underwriters and identified by each of them as such (i) no later more than one year from the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet issue (other than the Securities) or publicly disclose the intention to make any ABS Term Sheets that are not based on such offer, sale, pledge or disposition, without the Contract Pool information) by the Company, each prior written consent of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be materialPurchaser. The Company shall file will not at any corrected ABS Term Sheets described in time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j4(2) of the Servicing Agreement, addressed Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the Underwriters, with respect to the transfer offer and sale of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsSecurities.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the Underwriters CSFB that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative CSFB promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the Representative's consentconsent of CSFB, which consent will not be unreasonably be withheldwithheld or delayed. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by CSFB, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify CSFB of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither the consent of CSFB to, nor CSFB's delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter CSFB copies of the Registration Statementany Preliminary Offering Circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Circular and all amendments and supplements to such documents, including the documents incorporated therein by reference, in each case as soon as available and in such quantities as each Underwriter may reasonably requestCSFB requests, and the Company will furnish to CSFB on the date hereof three copies of the Offering Circular signed by a duly authorized officer of the Company, one of which will include the independent accountants' reports therein manually signed by such independent accountants. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act and is not exempt from reporting pursuant to Rule 12g3-2(b) under the Exchange Act, the Company will promptly furnish or cause to be furnished to CSFB and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to CSFB all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging use commercially reasonable efforts to arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the "blue sky" laws of such jurisdictions in the United States as each Underwriter CSFB designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedOffered Securities by CSFB, however, provided that the Company shall will not as a result thereof be obligated required to qualify as a foreign corporation, to do business in any jurisdiction in which it is not currently so qualified file a general consent to service of process, or to take any action which would subject it itself to general or unlimited service taxation in respect of process doing business, in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposejurisdiction.
(ixd) For a During the period from the date of this Agreement until the retirement of the Notesfive years hereafter, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing AgreementCSFB, as soon as practicable after the end of each fiscal year, a copy of its annual report to shareholders for such statements year; and reports are the Company will furnish to CSFB, as soon as available, a copy of each report or financial statement furnished to or filed with the Indenture Trustee and Owner Trustee respectively.
(x) So long as Commission or any securities exchange on which any class of securities of the Notes are outstandingCompany is listed. During the period of six months hereafter, the Company will furnish to you as soon as practicableCSFB, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you CSFB may reasonably request.
(ae) On or before During the period of two years after the later of the First Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding last Optional Closing Date, the Company shall cause its computer records for the related Prefunded Contracts will, upon request, furnish to be marked to show the Trust's absolute ownership CSFB and any holder of Offered Securities a copy of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Offered Securities.
(f) During the period of two years after the later of the related Prefunded Contracts First Closing Date and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding last Optional Closing Date, the Company shall will not, and shall instruct will not permit any of its affiliates (as defined in Rule 144 under the Servicer not Securities Act) to, take resell any action inconsistent of the Offered Securities that have been reacquired by any of them.
(g) During the period of two years after the later of the First Closing Date and the last Optional Closing Date, the Company will not be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(h) The Company will pay all expenses (together with VAT where applicable) incidental to the Trust's ownership performance of such Prefunded Contractsits obligations under this Agreement, other than as permitted by the Indenture and the Trust Registration Rights Agreement including (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities, the preparation and printing of this Agreement, the Registration Rights Agreement, the Offered Securities and the Indenture; (iii) the cost of qualifying the Offered Securities for trading in PORTAL and any expenses incidental thereto; (iv) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities; (v) for any expenses (including fees and disbursements of its counsel) incurred in connection with qualification of the Offered Securities for sale under the laws of such jurisdictions in the United States as CSFB designates and the printing of memoranda relating thereto; and (vi) for expenses incurred in distributing the Preliminary Offering Circular and the Offering Circular and all amendments and supplements to such documents, including the documents incorporated therein by reference, to CSFB. The Company will also pay for all travel expenses of the Company's officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities from CSFB. However, CSFB will pay (i) all expenses in connection with the printing of the Offering Document and (ii) all of its costs and expenses, including fees and disbursements of its counsel. In addition to the foregoing, CSFB will pay to the Company on the First Closing Date the sum of U.S.$50,000 as a non-accountable reimbursement of the Company's expenses. Such amount may be added to the purchase price for the Offered Securities set forth in Section 3 hereof.
(i) In connection with the offering, until CSFB shall have notified the Company of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it 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 Offered Securities.
(j) For a period of 90 days after the date of the initial offering of the Offered Securities by CSFB, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Securities Act relating to, (i) any Ordinary Shares or (ii) any United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue or (iii) any Ordinary Shares of the Company or securities convertible into or exchangeable or exercisable for Ordinary Shares of the Company, including American Depositary Shares, warrants or other rights to purchase Ordinary Shares of the Company, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of CSFB, except as required by the Registration Rights Agreement and except for issuances of Ordinary Shares pursuant to the conversion or exchange of convertible or exchangeable securities or the exercise of warrants or options, in each case outstanding on the date hereof or grants of employee stock options pursuant to the terms of a plan in effect on the date hereof. The Company will not at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable to the offer and sale of the Offered Securities. Notwithstanding anything to the contrary herein, this Agreement shall not in any way restrict or limit the Company's ability to purchase 27,142,000 Ordinary Shares from Best Alliance Profits Limited, an affiliate of The News Corporation Limited, following the date hereof.
(k) Within five (5) days of the First Closing Date, the Company will file or record with, or pay stamp, registration or similar taxes or duties to, such court, authority or agency of the Cayman Islands as necessary to ensure the legality, validity enforceability or admissibility in evidence of this Agreement, the Indenture, the Offered Securities, or the Registration Rights Agreement in the Cayman Islands. The Company will indemnify and hold harmless CSFB against any documentary, stamp or similar transfer or issue tax, or fees, including any interest and penalties, which are or may be required to be paid on or in connection with (A) the creation, issuance, sale and delivery by the Company of any Offered Securities to CSFB pursuant to this Agreement and the Offering Document, (B) the initial sale and delivery by CSFB of such Offered Securities to purchasers thereof, (C) the holding or transfer of the Securities outside the Cayman Islands and the PRC, and (D) the execution and delivery of this Agreement, the Indenture, the Offered Securities, the Registration Rights Agreement or any Material Agreement. All payments to be made by the Company hereunder shall be made without withholding or deduction for or on account of any present or future taxes, duties or governmental charges whatsoever unless the Company is compelled by law to deduct or withhold such taxes, duties or charges. In that event, the Company shall pay such additional amounts as may be necessary in order that the net amounts received after such withholding or deduction shall equal the amounts that would have been received if no withholding or deduction had been made.
(l) The Company agrees that, except as disclosed in the Offering Document and except for those which are not material to the Company, prior to the later of the First Closing Date and the last Optional Closing Date, it will not incur any liabilities or enter into any material agreements (except in the ordinary course of its business or as contemplated in the Offering Document) without the prior written consent of CSFB.
(m) The Company will ensure, or cause to ensure, (A) that the Group will possess all of the Governmental Licenses to the extent required or necessary for the operation of the businesses as presently conducted and as may be conducted from time to time by the Group and for the consummation of the transactions contemplated in the Material Agreements, will remain in compliance with the terms and conditions of all such Governmental Licenses, and will maintain the validity and effectiveness of any Governmental Licenses so required or necessary, (B) that NetEase Beijing will maintain its status as a PRC foreign invested entity and will obtain and maintain its classification as a "high-tech" company in the PRC, to the extent required or necessary for the operation of the business as presently conducted and as may be conducted from time to time by the Group without any Material Adverse Effect, and (C) the Group will comply with the relevant laws, rules and regulations required or necessary for the holders of the Offered Securities to continue to be entitled to their rights specified therein and in the Deposit Agreement.
(xiin) The Company will file with shall cause the Commission Material Agreements to remain valid and in full force and effect for so long as part of a current report on Form 8-K each ABS Term Sheet provided to required or necessary for the Company by each operation of the Underwriters businesses as presently conducted and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect may be conducted from time to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) time by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet Group without any Material Adverse Effect.
(if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. o) The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will use commercially reasonable efforts to cause each of Mssrs. Xxxxxxx Xxxxx LLP Xxx Xxxx and Xx Xxxx to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) remain a citizen of the Servicing AgreementPRC, addressed to excluding Taiwan, Hong Kong SAR and Macau SAR for as long as such PRC citizenship is required or necessary under PRC laws and regulations for the Underwriters, with respect to the transfer business operations of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsCompany as currently conducted without any Material Adverse Effect.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Netease Com Inc)
Certain Agreements of the Company. The Company agrees with the Underwriters Purchaser that:
(a) In addition to any and all other public statements or disclosures made by the Company in its sole discretion (subject to the last sentence of this Section 5(a)), the Company will issue a press release and file a Current Report on Form 8-K with the Commission regarding the Final Closing of the purchase and sale of the Offered Securities on the date of the Initial Closing and, if applicable, within one (1) business day after such Final Closing. Notwithstanding the foregoing, the Company shall not publicly disclose the name of the Purchaser, or include the name of the Purchaser in any filing with the Commission or any SRO, without the prior written consent of the Purchaser, except (i) Immediately following as required by federal securities law and (ii) to the execution extent such disclosure is required by law or regulations, in which case the Company shall provide the Purchaser with prior notice of such disclosure permitted under subclause (i) or (ii). Furthermore, the Company covenants and agrees that neither it nor any other Person acting on its behalf will provide the Purchaser or its agents or counsel with any information that the Company believes constitutes material non-public information, unless prior thereto the Purchaser shall have executed a written agreement regarding the confidentiality and use of such information. The Company understands and confirms that the Purchaser shall be relying on the foregoing representations in effecting transactions in securities of the Company.
(b) The Company shall indemnify and hold the Purchaser harmless from and against all fees, commissions or other payments owing by the Company to the Placement Agent or any other person or from acting on behalf of the Company with respect to the Offering.
(c) The Company will pay all expenses incidental to the performance of its obligations under this Agreement and the Registration Rights Agreement including all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Underlying Common Stock, the preparation of this Agreement, the Registration Rights Agreement, and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and as applicable the Underlying Common Stock.
(d) For a period of 90 days after the Final Closing Date, the Company will prepare a Prospectus Supplement setting forth not offer, sell, contract to sell, pledge, or otherwise dispose of, directly or indirectly, any Common Stock or any securities which are convertible into, or exercisable for, Common Stock, except for (i) shares of Common Stock issued or issuable pursuant to the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base ProspectusOffered Securities, specifically including all shares issuable upon conversion or exchange of, or as dividends on, the price at Offered Securities, (ii) shares of Common Stock issuable upon the exercise of any options or warrants outstanding on the date of this Agreement and identified in Schedule 3(b), (iii) shares of Common Stock issuable pursuant to or upon the conversion of any note, debenture, debt instrument and any other written agreement to which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate is a party on the date of this Agreement and shall furnish a copy identified in Schedule 3(b) and (iv) shares of Common Stock (including grants, options and warrants) issuable pursuant to the Representative or in accordance with Section 5(vii) any plan for which the Company has filed a registration statement that has been declared effective and identified in Schedule 3(b), including, without limitation, the 1994 Stock Plan and the Consultant Compensation Plan, or any other stock plan, option plan or written agreements to which the Company is a party on the date of this AgreementAgreement and identified in Schedule 3(b). The Company will transmit (the Prospectus including such Prospectus Supplement securities described in sections (i) through (iv) inclusive may sometimes be referred to herein as the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b"Excluded Securities"). The Company will advise not at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the Representative promptly exemption afforded by Section 4(2) of any such filing pursuant the Securities Act to Rule 424(b)cease to be applicable to the offer and sale of the Offered Securities and the Underlying Common Stock to the Purchaser hereunder.
(iie) Prior The Company shall use the net proceeds received from the sale of the Offered Securities solely for working capital, including the development of technology and, in the event that the gross proceeds to the termination of Company in the offering of the NotesOffering has been $6,000,000 or more, the Company will not file may repay any amendment portion of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing outstanding principal of, and will not file any such proposed amendment or supplement without the Representative's consentaccrued interest and other amounts payable on, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing certain outstanding convertible indebtedness of the Prospectus is otherwise required under Rule 424(b)Company, in an amount not to exceed One Million Three Hundred Thousand Dollars ($1,300,000) in the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filingaggregate.
(iiif) The In the event that the Company will advise the Representative promptly intends to make a sale of any proposal to amend equity securities or supplement the Registration Statement as filed or the Prospectus, and will not effect such amendment or supplement without the Representative's consent, securities which consent will not unreasonably may be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating to the Notes is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleadingconverted into, or if it is necessary at any time to amend the Prospectus to comply with the Actexercised or exchangeable for, the Company promptly will prepare and file with the Commission equity securities within twelve (subject to the Representative's prior review pursuant to paragraph (ii12) of this Section 5) an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date for cash consideration (a "Subsequent Financing"), with the exception of any equity securities issued or sold by the company pursuant to any written agreements to which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(vii) The Company will furnish to each Underwriter copies of the Registration Statement, the Prospectus and any preliminary Prospectus Supplement related thereto and all amendments and supplements to such documents, in each case as soon as available and in such quantities as each Underwriter may reasonably request.
(viii) The Company will cooperate with each Underwriter in arranging for the qualification of the Notes for sale and the determination of their eligibility for investment under the laws of such jurisdictions as each Underwriter designates and will continue such qualifications in effect so long as required for the distribution of the Notes; provided, however, that the Company shall not be obligated to qualify to do business in any jurisdiction in which it is not currently so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purpose.
(ix) For a period from party on the date of this Agreement until the retirement of the Notesand which are identified on Schedule 3(b), the Company will furnish to shall provide the Underwriters copies Purchaser with notice of the annual statements of compliance delivered to Subsequent Financing (the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x"Notice") So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicable, but in any event no later than fifteen (A15) Business Days prior to the scheduled closing of the Subsequent Financing. The Notice shall be accompanied by all documents distributedoffering materials provided to the investors in the Subsequent Financing. The Purchaser shall have the option, or caused but not the obligation, to purchase up to such amount of securities in the Subsequent Financing, upon the same terms and conditions made available to the other investors in the Subsequent Offering, as may be distributed, purchased for the dollar amount that is the equivalent of the purchase price paid by the Servicer Purchaser for the Offered Securities in this offering. In the event that the Purchaser elects to exercise its option to participate in the NoteholdersSubsequent Financing, (B) all documents filed, or caused to be filed, by the Purchaser must provide the Company with written notice of such exercise no later than ten (10) Business Days after the Commission pursuant Purchaser has received the Notice, specifying the number of securities that Purchaser has elected to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information purchase in the possession Subsequent Financing. For the purposes of this Agreement, the Company concerning the Trust and term "Business Day" means any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably request.
(a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, calendar day other than as permitted a Saturday, Sunday, or other day on which commercial banks in the State of New York are required or authorized by the Indenture and the Trust Agreement.
(b) On law to close. The provisions of this paragraph shall not apply to any sale of equity securities or before the related Prefunding Closing Datesecurities which may be converted into, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trustor exercised for, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each of the Underwriters and identified by each of them as such equity securities (i) no later than pursuant to an effective registration statement under the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or Securities Act, (ii) no later than two days following their date in connection with a strategic, non-financing related, strategic partnership, or (iii) as consideration for an acquisition of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) another company made by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Viseon Inc)
Certain Agreements of the Company. The Company agrees with the Underwriters Initial Purchaser that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative Initial Purchaser promptly of any proposal to amend or supplement the Registration Statement as filed Preliminary or the Prospectus, Final Offering Memorandum and will not effect such amendment or supplement supplementation without the Representative's Initial Purchaser’s consent, which consent will shall not be unreasonably be withheldwithheld or delayed. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Initial Purchaser, any event occurs as a result of which the Prospectus as then amended Preliminary Offering Memorandum, Final Offering Memorandum or supplemented any document included in the General Disclosure Package or any Supplemental Marketing Material included or would include an untrue statement of a material fact or omitted or would omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madeprevailing at such time, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify the Initial Purchaser of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither the Initial Purchaser’s consent to, nor the Initial Purchaser’s delivery to offerees or an investors of, any such amendment or supplement which will effect shall constitute a waiver of any of the conditions set forth in Section 7. The first sentence of this subsection does not apply to statements in or omissions from the Preliminary Offering Memorandum, Final Offering Memorandum or any document included in the General Disclosure Package or any Supplemental Marketing Material made in reliance upon and in conformity with written information furnished to the Company by the Initial Purchaser specifically for use therein, it being understood and agreed that the only such complianceinformation is that described as such in Section 8(b) hereof.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter the Initial Purchaser copies of the Registration StatementPreliminary Offering Memorandum, the Prospectus Final Offering Memorandum and any preliminary Prospectus Supplement related thereto each document comprising a part of the General Disclosure Package and all amendments and supplements to such documentsdocuments and each item of Supplemental Marketing Material, if any, in each case as soon as available and in such quantities as each Underwriter may the Initial Purchaser reasonably request.
(viiirequests. At any time when the Company is not subject to Section 13 or 15(d) The Company will cooperate with each Underwriter in arranging for the qualification of the Notes for sale and the determination of their eligibility for investment under the laws of such jurisdictions as each Underwriter designates and will continue such qualifications in effect so long as required for the distribution of the Notes; provided, however, that the Company shall not be obligated to qualify to do business in any jurisdiction in which it is not currently so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purpose.
(ix) For a period from the date of this Agreement until the retirement of the NotesExchange Act, the Company will promptly furnish or cause to be furnished, upon request of the Initial Purchaser, to the Underwriters Initial Purchaser and, upon request of holders and prospective purchasers of the Offered Securities to such holders and purchasers, copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably request.
(a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished delivered to holders and prospective purchasers of the Offered Securities pursuant to Section 2.01(jRule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.Offered
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the Underwriters several Initial Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative CSFBC promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the RepresentativeCSFBC's consent, which consent will shall not be unreasonably be withheldwithheld or delayed. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Act, resale of the Offered Securities by the Initial Purchasers any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any such time to amend or supplement the Prospectus Offering Document to comply with the Actany applicable law, the Company promptly will prepare notify CSFBC of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission or an effect such compliance. Neither CSFBC's consent to, nor the Initial Purchasers' delivery to offerees or investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6 of this Agreement.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter CSFBC copies of the Registration Statement, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as CSFBC reasonably requests, and the Company will furnish to CSFBC on the date hereof three copies of the Offering Document signed by a duly authorized officer of the Company, one of which will include the independent accountants' reports therein manually signed by such independent accountants. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to CSFBC (and, upon request, to each Underwriter may reasonably requestof the other Initial Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Initial Purchasers all such documents.
(viiic) The Company will cooperate arrange with each Underwriter in arranging the cooperation of the Initial Purchasers for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter CSFBC designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; provided, however, Offered Securities by the Initial Purchasers provided that the Company shall will not be obligated required to qualify such Offered Securities if such qualification would require the Company to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process or subject itself to taxation in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposestate.
(ixd) For a During the period from the date of this Agreement until the retirement of the Notesthree years hereafter, the Company will furnish to the Underwriters copies CSFBC and, upon request, to each of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreementother Initial Purchasers, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such statements year; and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you CSFBC and, upon request, to each of the other Initial Purchasers (i) as soon as practicableavailable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by a copy of each report and any definitive proxy statement of the Company filed with the Commission pursuant to under the Exchange ActAct or mailed to stockholders, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (Cii) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you CSFBC may reasonably request.
(ae) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts will, upon request, furnish to be marked to show the Trust's absolute ownership CSFBC, each of the related Prefunded Contracts other Initial Purchasers and shall cause any holder of Offered Securities a copy of the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Offered Securities.
(f) During the period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and two years after the related Prefunding Closing Date, the Company shall will not, and shall instruct will not permit any of its affiliates (as defined in Rule 144 under the Servicer not Securities Act) to, take resell any action inconsistent with of the Trust's ownership Offered Securities that have been reacquired by any of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreementthem.
(xiig) During the period of two years after the Closing Date, the Company will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(h) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided pay all expenses incidental to the Company by each performance of its obligations under this Agreement, the Underwriters Registration Rights Agreement and identified by each of them as such the Indenture, including (i) no later than the date that fees and expenses of the Prospectus Supplement is filed with respect to "computational materials" Trustee and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or its professional advisers; (ii) no later than two all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Securities (as defined in the Registration Rights Agreement), the preparation and printing of this Agreement, the Securities, the Indenture, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and, as applicable, the Exchange Securities; (iii) the cost of qualifying the Offered Securities for trading in The Portal-SM- Market ("PORTAL") of The Nasdaq Stock Market, Inc. and any expenses incidental thereto, (iv) the cost of any advertising approved in writing by the Company in connection with the issue of the Offered Securities, (v) for any expenses (including reasonable fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities or the Exchange Securities for sale under the laws of such jurisdictions as in writing by the Company CSFBC designates and the printing of memoranda relating thereto, (vi) for any fees charged by investment rating agencies for the rating of the Offered Securities or the Exchange Securities, and (vii) for expenses incurred in distributing the Offering Document (including any amendments and supplements thereto) to the Initial Purchasers. The Company will reimburse the Initial Purchasers for all reasonable travel expenses of the Initial Purchasers and the Company's officers and employees (to the extent incurred by the Initial Purchasers) and any other reasonable expenses of the Initial Purchasers and the Company (to the extent incurred by the Initial Purchasers) in connection with attending or hosting meetings with prospective purchasers of the Offered Securities.
(i) In connection with the offering, until CSFBC shall have notified the Company and the other Initial Purchasers of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it 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 Offered Securities.
(j) For a period of 120 days following their after the date of first use the initial offering of the Offered Securities by the Initial Purchasers, the Company will not, without the prior written consent of CSFBC, which consent shall not be unreasonably withheld, offer, sell, contract to sell, pledge, or otherwise dispose of, directly or indirectly, any United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue, except issuances of (i) Offered Securities pursuant to the conversion or exchange of convertible or exchangeable securities or the exercise of warrants or options, in each case outstanding on the date hereof, (ii) the Exchange Securities, (iii) any debt securities of another entity acquired by the Company or assured by the Company in connection with respect to "collateral term sheets" an acquisition of the assets of such entity, which debt securities were (as such term is interpreted in the No-Action Letters); provided, however, that a) existing prior to such filing acquisition; and (b) were not issued in connection with, or in contemplation of, such acquisition), (iv) grants of an ABS Term Sheet (other than any ABS Term Sheets that are not based employee stock options pursuant to the terms of a plan in effect on the Contract Pool information) by the Companydate hereof, each issuances of the Underwriters must comply with their obligations Offered Securities pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance exercise of such options or issuances of Offered Securities pursuant to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material's dividend reinvestment plan. The Company shall file will not at any corrected ABS Term Sheets described in time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j4(2) of the Servicing Agreement, addressed Securities Act to cease to be applicable to the Underwriters, with respect to the transfer offer and sale of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsOffered Securities.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the Underwriters Purchaser that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative Purchaser promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the RepresentativePurchaser's consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating to the Notes is required to be delivered under the Act, any event occurs as a result of which which, in the Prospectus reasonable opinion of Company, its counsel, the Purchaser or its counsel, the Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify the Purchaser of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither the Purchaser's consent to, nor the Purchaser's delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter the Purchaser copies of the Registration Statement, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documentsthereto, in each case as soon as available and in such quantities as the Purchaser requests, and the Company will furnish to the Purchaser on the date of first publication thereof one copy of the Offering Document which will include the independent accountants' reports therein manually signed by such independent accountants. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to the Purchaser (and, upon request, to each Underwriter may reasonably requestSubsequent Purchaser, if any) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchaser and any Subsequent Purchaser all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States as each Underwriter the Purchaser designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedOffered Securities by the Purchaser, however, provided that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension such state or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposejurisdiction.
(ix) For a period from the date of this Agreement until the retirement of the Notes, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(xd) So long as any of the Notes Offered Securities are outstanding, the Company will furnish to you as soon as practicable, (A) the Purchaser copies of all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) public reports and all documents filed, or caused to be filed, reports and financial statements furnished by the Company to the American Stock Exchange, Inc. pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act, Act or any order rule or regulation of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably requestthereunder.
(ae) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for will, upon request, furnish to the related Prefunded Contracts to be marked to show the Trust's absolute ownership Purchaser and any Subsequent Purchaser a copy of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Offered Securities.
(f) During the period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and two years after the related Prefunding Closing Date, the Company shall will not, and shall instruct will not permit any of its affiliates (as defined in Rule 144 under the Servicer not Securities Act) to, take resell any action inconsistent with of the Trust's ownership Offered Securities that have been reacquired by any of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreementthem.
(xiig) The Company will file pay the costs incident to the authorization, issuance, sale and delivery of the Offered Securities and any taxes payable in that connection; the costs incident to the preparation and printing of the Offering Document and any amendments or supplements; the costs of distributing to the Purchaser and any Subsequent Purchaser of the Offering Document and any amendment or supplement thereto as provided in this Agreement; the fees paid to rating agencies in connection with the Commission rating of the Offered Securities; the reasonable fees and expenses of qualifying the Offered Securities under the securities laws of the several jurisdictions as part provided in this Paragraph and of preparing and printing a current report on Form 8-K each ABS Term Sheet provided Blue Sky Memorandum (including related fees and expenses of counsel for the Purchaser); and all other costs and expenses incident to the Company by each performance of the Underwriters obligations of the Purchaser under this Agreement; provided that, except as provided in this Paragraph, the Purchaser shall pay its own costs and identified by each expenses, including the fees and expenses of them as such its counsel and any transfer taxes on the Offered Securities which it may sell. In addition, the Company agrees to pay the reasonable fees and expenses of the Trustee and its professional advisers and the cost of qualifying the Offered Securities for trading in The PortalSM Market ("PORTAL") and any expenses incidental thereto.
(h) In connection with the offering, until the Purchaser shall have notified the Company of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it 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 Offered Securities.
(i) no later than For the period from the date that of the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in initial offering of the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) Offered Securities by the CompanyPurchaser through the Closing Date, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLPwill not offer, certified public accountantssell, satisfactory in form and substance contract to the Companysell, to the effect that such accountants have performed certain specified procedurespledge or otherwise dispose of, all of which have been agreed to by the Companydirectly or indirectly, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8any other United States dollar-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue, or publicly disclose the intention to be materialmake any such offer, sale, pledge or disposition, without the prior written consent of the Purchaser. The Company shall file will not at any corrected ABS Term Sheets described in time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(vi4(2) as soon as practicable following receipt thereofof the Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the offer and sale of the Offered Securities.
(xiiij) The Company will cause Xxxxxxx Xxxxx LLP use its best efforts to deliver have the Offered Securities designated as eligible for trading on PORTAL; the Company will cooperate with the Purchaser and use its best efforts to permit the Underwriters on or before the Prefunding Closing Date, the opinions required Offered Securities to be furnished pursuant to Section 2.01(j) eligible for clearance and settlement through the facilities of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsDTC.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative JPMorgan promptly of any proposal to amend or supplement the Registration Statement as filed Preliminary or the Prospectus, Final Offering Memorandum and will not effect such amendment or supplement supplementation without the Representative's consent, JPMorgan’s consent (which consent will shall not be unreasonably be withheldwithheld or delayed). The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Purchasers, any there occurs an event occurs or development as a result of which any document included in the Prospectus as then amended Preliminary or supplemented Final Offering Memorandum, the General Disclosure Package or any Supplemental Marketing Material included or would include an untrue statement of a material fact or omitted or would omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madeprevailing at such time, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify JPMorgan of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither JPMorgan’s consent to, nor the Purchasers’ delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter JPMorgan copies of the Registration StatementPreliminary Offering Memorandum, each other document comprising a part of the Prospectus General Disclosure Package and any preliminary Prospectus Supplement related thereto and the Final Offering Memorandum, all amendments and supplements to such documentsdocuments and each item of Supplemental Marketing Material, in each case as soon as available and in such quantities as JPMorgan reasonably requests. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, and any Offered Securities remain “restricted securities” within the meaning of the Securities Act, the Company will promptly furnish or cause to be furnished to JPMorgan (and, upon request, to each Underwriter may reasonably requestof the other Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging for use all commercially reasonable efforts to obtain the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter JPMorgan designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedOffered Securities by the Purchasers, however, provided that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposestate.
(ixd) For a During the period from of two years after the date of this Agreement until Closing Date, the retirement Company will, upon request, furnish to JPMorgan, each of the Notesother Purchasers and any holder of Offered Securities a copy of the restrictions on transfer applicable to the Offered Securities.
(e) During the period of five years hereafter, unless such documents are available electronically via the XXXXX system maintained by the Commission, the Company will furnish to the Underwriters copies JPMorgan and, upon request, to each of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreementother Purchasers, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such statements year; and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you JPMorgan and, upon reasonable request, to each of the other Purchasers (i) as soon as practicableavailable, a copy of each report and any definitive proxy statement of the Company mailed to stockholders, and (Aii) all documents distributed, or caused the information required to be distributedprovided to the Trustee for the Offered Securities pursuant to the Indenture.
(f) Subject to the Purchasers’ compliance with its representations and warranties and agreements set forth in Section 4 hereof, the Company consents to the use of the Preliminary Offering Memorandum, any other documents comprising any part of the General Disclosure Package, the Final Offering Memorandum and any amendments and supplements thereto required pursuant to Section 5(a) hereto, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably requestPurchasers.
(ag) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause will not, and will not permit any of its computer records for affiliates (as defined in Rule 144 under the related Prefunded Contracts to be marked to show the Trust's absolute ownership Securities Act) to, resell any of the related Prefunded Contracts and shall cause Offered Securities that have been reacquired by any of them, unless such Offered Securities are resold in a transaction registered under the Servicer to mark its computer records for Securities Act.
(h) During the related Prefunded Contracts to show the sale to the Company period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and two years after the related Prefunding Closing Date, the Company shall notwill not be or become, and shall instruct an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust AgreementInvestment Company Act.
(xiii) The Company agrees to pay all expenses incidental to the performance of its obligations under the Operative Documents including (i) the fees and expenses of the Trustee and their respective professional advisers, (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Securities (as defined in the Registration Rights Agreement), the preparation and printing of the Preliminary Offering Memorandum, any other documents comprising any part of the General Disclosure Package, the Final Offering Memorandum, all amendments and supplements thereto, each item of Supplemental Marketing Material and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and as applicable the Exchange Securities, (iii) the cost of qualifying the Offered Securities for trading in The PortalSM Market (“PORTAL”) of The Nasdaq Stock Market, Inc. and any expenses incidental thereto, (iv) for any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities or the Exchange Securities for sale under the state securities laws as provided in Section 5(c) and the printing of memoranda relating thereto, (v) for any fees charged by investment rating agencies for the rating of the Offered Securities or the Exchange Securities, and (vi) for expenses incurred in distributing the Preliminary Offering Memorandum, any other documents comprising any part of the General Disclosure Package, the Final Offering Memorandum (including any amendments and supplements thereto) and any Supplemental Marketing Material to the Purchasers.
(j) In connection with the offering, until JPMorgan shall have notified the Company and the other Purchasers, which notice shall be promptly provided upon the written request of the Company, of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it 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 Offered Securities.
(k) The Company will file with apply the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to net proceeds from the Company by each sale of the Underwriters and identified Offered Securities to be sold by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined it hereunder substantially in accordance with such agreed upon proceduresthe description set forth in the Final Offering Memorandum under the caption “Use of Proceeds.”
(l) Except as stated in this Agreement, is accurate except as the General Disclosure Package or the Final Offering Memorandum, neither the Company nor any of its affiliates have taken, nor will any of them take, directly or indirectly, any action designed to such matters or that are not deemed by might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereoffacilitate the sale or resale of the Offered Securities.
(xiiim) The Company will cause Xxxxxxx Xxxxx LLP use its best efforts to deliver to permit the Underwriters on or before the Prefunding Closing Date, the opinions required Offered Securities to be furnished pursuant designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to Section 2.01(j) of trading in PORTAL and to permit the Servicing Agreement, addressed Offered Securities to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contractsbe eligible for clearance and settlement through DTC.
(xivn) The Company agrees not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act), that would be integrated with the sale of the Offered Securities in a manner that would require the registration under the Securities Act of the sale to the Purchasers or the resale of the Offered Securities.
(o) The Company agrees to comply with all the terms and conditions of the Operative Documents and all agreements set forth in the representation letter of the Company to DTC relating to the approval of the Offered Securities by DTC for “book entry” transfer.
(p) The Company will deliver do and perform all things required or necessary to be done and performed under this Agreement by them prior to the Underwriters (i) on or before each Prefunding Closing Date, and to satisfy all conditions precedent to the Officer's Certificate and certificate from each secured creditor required Purchasers’ obligations hereunder to be furnished pursuant to Section 2.01(j) of purchase the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing AgreementOffered Securities.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(iia) Prior to the later of (i) termination of the offering of the NotesSecurities as determined by the Representatives and as evidenced by written notice thereof to the Company from the Representatives or (ii) the Closing Date, the Company will not file any amendment of the Registration Statement or supplement the Prospectus, and will not use, authorize, approve, refer to the or file any Issuer Free Writing Prospectus (other than as listed on Schedule III hereto), unless the Company has furnished the Representative with Representatives a copy for its the Representatives’ review prior and the Representatives have consented to filing and will not file any such proposed amendment or supplement without or the Representative's consentuse of such materials, which such consent will not to be unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file cause the Prospectus, properly completed, and any supplement thereto, Prospectus to be filed with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within under the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iii) The Company will advise the Representative promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, and will not effect such amendment or supplement without the Representative's consent, which consent will not unreasonably be withheldAct. The Company will also promptly advise the Representative promptly Representatives (i) when the Prospectus shall have been filed with the Commission pursuant to Rule 424(b), (ii) when any Issuer Free Writing Prospectus shall have been filed with the Commission, (iii) when any amendment to the Registration Statement relating to the Securities shall have become effective, (iv) of any request by the Commission for any amendment of or supplement to the Registration Statement or amendment of or supplement to the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and information, (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat threatening of any proceeding for that purpose, purpose and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating to the Notes is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(vii) The Company will furnish to each Underwriter copies of the Registration Statement, the Prospectus and any preliminary Prospectus Supplement related thereto and all amendments and supplements to such documents, in each case as soon as available and in such quantities as each Underwriter may reasonably request.
(viii) The Company will cooperate with each Underwriter in arranging for the qualification of the Notes for sale and the determination of their eligibility for investment under the laws of such jurisdictions as each Underwriter designates and will continue such qualifications in effect so long as required for the distribution of the Notes; provided, however, that the Company shall not be obligated to qualify to do business in any jurisdiction in which it is not currently so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or of the qualification of the Notes Securities for sale in any jurisdiction or the initiation or threat threatening of any proceeding for such purpose. The Company will use all reasonable efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof.
(ixb) For The Company will comply with the Act and the Exchange Act so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Registration Statement, the Time of Sale Information and the Prospectus. If, at any time when a period from prospectus relating to the date Securities is required to be delivered under the Act (or such delivery is required but for Rule 172 under the Act) (the “Prospectus Delivery Period”), any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to (i) amend the Registration Statement in order that the Registration Statement will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) amend or supplement the Time of Sale Information or the Prospectus in order that the Time of Sale Information or the Prospectus, as the case may be, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser or (iii) amend the Registration Statement or amend or supplement the Time of Sale Information or the Prospectus, as the case may be, in order to comply with the requirements of the Act, the Company will promptly notify the Underwriters thereof and promptly prepare and file with the Commission (to the extent required), subject to the first sentence of paragraph (a) of this Agreement until Section 4, and furnish to the retirement Underwriters and to such dealers as the Representatives may designate, such amendments or supplements to the Time of Sale Information which will correct such statement or omission or which will effect such compliance.
(c) The Company has furnished or will deliver to the Representatives and counsel for the Underwriters, without charge, a signed copy of the NotesRegistration Statement as originally filed and a signed copy of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and a signed copy of all consents and certificates of experts, and will also deliver to the Representatives, without charge, a conformed copy of the Registration Statement as originally filed and of each amendment thereto (without exhibits) for each of the Representatives. The Registration Statement and each amendment thereto furnished to the Representatives will be identical to any electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(d) The Company will advise the Representatives promptly, and confirm such advice in writing, of the issuance by any governmental or regulatory authority of any order preventing or suspending the use of any of the Time of Sale Information or the Prospectus or any other written materials or, to the Company’s knowledge, the initiation or threatening of any proceeding for that purpose.
(e) The Company shall cooperate with the Underwriters and counsel for the Underwriters to qualify or register (or to obtain exemptions from qualifying or registering) all or any part of the Securities for offer and sale under the securities laws of the several states of the United States, the provinces of Canada or any other jurisdictions reasonably designated by the Underwriters, shall comply with such laws and shall continue such qualifications, registrations and exemptions in effect so long as required for the distribution of the Securities. The Company shall not be required to qualify as a foreign corporation or to take any action that would subject it to general service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation. The Company will advise the Underwriters promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
(f) The Company will furnish to the Underwriters Representatives and counsel for the Underwriters, without charge, copies of the annual statements Time of compliance delivered Sale Information (including exhibits thereto) and each amendment thereto and as many copies of the Prospectus and any amendments thereof and supplements thereto and documents incorporated by reference therein as the Representatives may reasonably request. The Company will pay the expenses of printing all documents relating to the Indenture Trustee pursuant to Section 3.09 of offering unless otherwise agreed with the Indenture and Section 3.10 of the Servicing Agreement, Representatives. The Preliminary Prospectus and the annual independent public accountant's reports Prospectus and any amendments or supplements thereto furnished to the Indenture Trustee Underwriters will be identical to any electronically transmitted copies thereof filed with the Commission pursuant to Section 3.11 of the Servicing AgreementXXXXX, as soon as practicable after such statements and reports are furnished except to the Indenture Trustee extent permitted by Regulation S-T.
(g) During the Prospectus Delivery Period, the Company shall file, on a timely basis, with the Commission all reports and Owner Trustee respectivelydocuments required to be filed under the Exchange Act.
(xh) So long as any The Company will prepare a final term sheet containing only a description of the Notes are outstandingSecurities, in a form approved by the Underwriters and attached as Schedule III, and will file such term sheet pursuant to Rule 433(d) under the Act within the time required by such rule (such term sheet, the “Final Term Sheet”). Any such Final Term Sheet is an Issuer Free Writing Prospectus for purposes of this Agreement.
(i) The Company represents that it has not made, and agrees that, unless it obtains the prior written consent of the Representatives, it will furnish not make, any offer relating to you the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as soon as practicable, (Adefined in Rule 405 of the Act) all documents distributed, or caused required to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, filed by the Company with the Commission pursuant or retained by the Company under Rule 433 of the Act; provided that the prior written consent of the Representatives shall be deemed to have been given in respect of any Issuer Free Writing Prospectuses included in Annex I to this Agreement. Any such free writing prospectus consented to or deemed to be consented to by the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of the Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping. The Company consents to the Exchange Actuse by any Underwriter of a free writing prospectus that (a) is not an “issuer free writing prospectus” as defined in Rule 433, any order and (b) contains only (i) information describing the preliminary terms of the Commission thereunder Securities or pursuant to a "no-action" letter from their offering, (ii) information permitted by Rule 134 under the staff Act or (iii) information that describes the final terms of the Commission Securities or their offering and (C) from time to time, such other information that is included in the possession Final Term Sheet of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably requestcontemplated in Section 4(i).
(aj) On or before If at any time during the Closing Date Prospectus Delivery Period, the Company shall cause its computer records receives from the Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (i) promptly notify the Representatives, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Funded Contracts Securities, in a form satisfactory to the Representatives, (iii) use its reasonable efforts to cause such registration statement of post-effective amendment to be marked declared effective and (iv) promptly notify the Representatives of such effectiveness. The Company will take all other action necessary or appropriate to show permit the Trust's absolute ownership public offering and sale of the Funded Contracts and Securities to continue as contemplated in the registration statement that was the subject of the Rule 401(g)(2) notice or for which the Company has otherwise become ineligible. References herein to the Registration Statement shall cause include such new registration statement or post-effective amendment, as the Servicer case may be.
(k) The Company agrees to mark its computer records pay the required Commission filing fees relating to the Funded Contracts to show Securities within the sale to the Company time required by and in accordance with Rules 456(b)(1) and 457(r) of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust AgreementAct.
(bl) On or before During the related Prefunding Prospectus Delivery Period, the Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Xxxxxxxx-Xxxxx Act, and use its reasonable efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Xxxxxxxx-Xxxxx Act.
(m) Until the Business Day following the Closing Date, the Company shall cause its computer records for will not, without the related Prefunded Contracts to be marked to show the Trust's absolute ownership prior consent of the related Prefunded Contracts Representatives, offer, sell, contract to sell, or otherwise dispose of any debt securities of the Company which mature more than one year following the Closing Date and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale which are substantially similar to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust AgreementSecurities.
(xiin) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each of assist the Underwriters and identified by each of them as such (i) no later than in arranging for the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company Securities to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereofeligible for clearance and settlement through the Depositary Trust Company.
(xiiio) The In connection with the offering and sale of Securities, neither the Company nor any of its subsidiaries will take, directly or indirectly, any action designed to or that could be reasonable be expected to cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) result in any stabilization or manipulation of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer price of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsSecurities.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the Underwriters that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Basic Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iii) The Company will advise the Representative promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, and will not effect such amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating to the Notes is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(vii) The Company will furnish to each Underwriter copies of the Registration Statement, the Prospectus and any preliminary Prospectus Supplement related thereto and all amendments and supplements to such documents, in each case as soon as available and in such quantities as each Underwriter may reasonably request.
(viii) The Company will cooperate with each Underwriter in arranging for the qualification of the Notes for sale and the determination of their eligibility for investment under the laws of such jurisdictions as each Underwriter designates and will continue such qualifications in effect so long as required for the distribution of the Notes; provided, however, that the Company shall not be obligated to qualify to do business in any jurisdiction in which it is not currently so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purpose.
(ix) For a period from the date of this Agreement until the retirement of the Notes, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably request.
(a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.inconsistent
Appears in 1 contract
Samples: Underwriting Agreement (Onyx Acceptance Financial Corp)
Certain Agreements of the Company. The Company covenants and agrees with the Underwriters thatInitial Purchaser as follows:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iii) The Company will advise the Representative promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, and will not effect such amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(va) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under 90th day following the ActClosing Date, any event occurs involving the Company, the Depositor, the Issuer or, to the knowledge of a Responsible Officer of the Company, the Collateral Manager shall occur as a result of which the Prospectus Final Memorandum (as then amended or supplemented supplemented) would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will immediately notify the Initial Purchaser and will cause the Issuer to prepare and file with the Commission (subject furnish to the Representative's prior review pursuant to paragraph (ii) of this Section 5) Initial Purchaser an amendment or supplement which to the Final Memorandum that will correct such statement or omission omission. The Issuer will not at any time amend or an supplement the Final Memorandum (i) prior to having furnished the Initial Purchaser with a copy of the proposed form of the amendment or supplement and giving the Initial Purchaser a reasonable opportunity to review the same or (ii) except to the extent the Company may determine it or the Issuer is required to so disclose pursuant to applicable law and after consultation with the Initial Purchaser (and, in such a circumstance, shall remove all references to the Initial Purchaser therefrom if so requested by the Initial Purchaser), in a manner to which will effect such compliancethe Initial Purchaser or its counsel shall object.
(vib) As soon as practicableDuring the period referred to in Section 6(a), the Company will cause the Trust to make generally available furnish to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(vii) The Company will furnish to each Underwriter Initial Purchaser, without charge, copies of the Registration StatementFinal Memorandum (including all exhibits and documents incorporated by reference therein), the Prospectus and any preliminary Prospectus Supplement related thereto Transaction Documents, and all amendments and or supplements to such documents, in each case case, as soon as reasonably available and in such quantities as each Underwriter the Initial Purchaser may from time to time reasonably request.
(viiic) The Subject to compliance with Regulation FD, at all times during the course of the private placement contemplated hereby and prior to the Closing Date, (i) the Company will cooperate make available to each offeree the Additional Offering Documents and such information concerning any other relevant matters as it or any of its affiliates possess or can acquire without unreasonable effort or expense, as determined in good faith by it or such affiliate, as applicable, (ii) the Company will provide each offeree the opportunity to ask questions of, and receive answers from, it concerning the terms and conditions of the offering and to obtain any additional information, to the extent it or any of its affiliates possess such information or can acquire it without unreasonable effort or expense (as determined in good faith by it or such affiliate, as applicable), necessary to verify the accuracy of the information furnished to the offeree, (iii) the Company will not publish or disseminate any material in connection with each Underwriter the offering of the Offered Notes except as contemplated herein or as consented to by the Initial Purchaser or in arranging for connection with the qualification Company’s disclosure obligations under the Exchange Act, provided that no such disclosure under the Exchange Act would result in a requirement that the offering of the Notes for sale and the determination of their eligibility for investment be registered under the laws of such jurisdictions as each Underwriter designates and will continue such qualifications in effect so long as required for the distribution §5 of the Notes; providedSecurities Act, however, that (iv) the Company shall not be obligated to qualify to do business in any jurisdiction in which it is not currently so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters Initial Purchaser promptly of the receipt by the Company of any notification with respect communication from the SEC or any state securities authority concerning the offering or sale of the Offered Notes, (v) the Company will advise the Initial Purchaser promptly of the commencement of any lawsuit or proceeding to which the Company is a party relating to the offering or sale of the Offered Notes, and (vi) the Company will advise the Initial Purchaser of the suspension or of the qualification of the Offered Notes for offering or sale in any jurisdiction jurisdiction, or the initiation or threat of any proceeding procedure for any such purpose.
(ixd) For a period from the date of this Agreement until the retirement of the NotesSubject to compliance with Regulation FD, the Company will furnish furnish, upon the written request of any Noteholder or of any owner of a beneficial interest in a Note, such information as is specified in paragraph (d)(4) of Rule 144A under the Securities Act (i) to such Noteholder or beneficial owner, (ii) to a prospective purchaser of such Note or interest therein who is a QIB and a Qualified Purchaser designated by such Noteholder or beneficial owner, or (iii) to the Underwriters copies Trustee for delivery to such Noteholder, beneficial owner or prospective purchaser, in order to permit compliance by such Noteholder or beneficial owner with Rule 144A in connection with the resale of such Note or beneficial interest therein by such holder or beneficial owner in reliance on Rule 144A unless, at the time of such request, the Issuer is subject to the reporting requirements of Section 13 or 15(d) of the annual statements Securities Exchange Act of compliance delivered to the Indenture Trustee 1934 or is exempt from such reporting requirements pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectivelyin compliance with Rule 12g3-2(b).
(xe) So long Except as otherwise provided in the Indenture, each Offered Note will contain legends in the forms set forth in the Final Memorandum.
(f) Neither the Issuer nor any of its affiliates or any other Person acting on their behalf shall engage, in connection with the Notes are outstandingoffer and sale of the Offered Notes, in any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act, including, but not limited to, the Company will furnish following:
(i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar medium or broadcast over television or radio; and
(ii) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.
(g) The Issuer shall not solicit any offer to you buy from or offer to sell or sell to any Person any Offered Notes, except through the Initial Purchaser or with the consent of the Initial Purchaser and/or as soon as practicable, (A) all documents distributed, or caused to be distributed, by otherwise specified in the Servicer Indenture at any time prior to the NoteholdersClosing Date; on or prior to the Closing Date, neither the Issuer nor any of its affiliates (B) all documents filed, or caused to be filed, except for compliance by the Company with Regulation FD) shall publish or disseminate any material other than the Commission pursuant Additional Offering Documents consented to by the Initial Purchaser, the Time of Sale Information and the Final Memorandum in connection with the offer or sale of the Offered Notes as contemplated by this Agreement, unless the Initial Purchaser shall have consented to the Exchange Actuse thereof; if the Issuer or any of its affiliates makes any press release including “tombstone” announcements, any order of in connection with the Commission thereunder or pursuant Transaction Documents, the Issuer shall permit the Initial Purchaser to a "no-action" letter from the staff of the Commission review and (C) from time to time, approve such other information release in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably requestadvance.
(ah) On The Issuer shall not take, or before permit or cause any of its affiliates to take, any action whatsoever which would have the Closing Date effect of requiring the Company shall cause its computer records relating to registration, under the Funded Contracts to be marked to show the Trust's absolute ownership Securities Act, of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the offer or sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust AgreementOffered Notes.
(bi) On The Issuer shall not take, directly or before indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the related Prefunding Closing DateExchange Act or otherwise, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership in stabilization or manipulation of the related Prefunded Contracts and shall cause the Servicer price of any Offered Note to mark its computer records for the related Prefunded Contracts to show facilitate the sale to the Company or resale of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust AgreementOffered Notes.
(xiij) The Company will file with shall apply the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to net proceeds from the Company by each sale of the Underwriters and identified by each of them Offered Notes as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted set forth in the No-Action Letters) or (ii) no later than two days following their date Final Memorandum under the heading “Use of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereofProceeds”.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative CSFBC promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the RepresentativeCSFBC's consent, which such consent will shall not be unreasonably be withheldwithheld or delayed. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Purchasers, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any such time to amend or supplement the Prospectus Offering Document to comply with the Actany applicable law, the Company will notify CSFBC promptly of such event and will prepare and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly, at its own expense, an amendment or supplement which will correct such statement or omission or an effect such compliance. Neither CSFBC's consent to, nor the Purchasers' delivery to offerees or investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter CSFBC copies of the Registration Statementof, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as each Underwriter may CSFBC reasonably requestrequests, and the Company will furnish to CSFBC on the date hereof four copies of the Offering Document signed by a duly authorized officer of the Company, one of which will include the independent accountants' reports therein manually signed by such independent accountants. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company promptly will furnish or cause to be furnished to CSFBC and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of preparing, printing and distributing all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging use its reasonable best efforts to arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions states in the United States as each Underwriter CSFBC designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedOffered Securities by the Purchasers, however, provided that neither the Company shall not nor any Subsidiary Guarantor will be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposestate.
(ixd) For a During the period from the date of this Agreement until the retirement of the Notesfive years hereafter, the Company will furnish to the Underwriters copies CSFBC and, upon request, to each of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreementother Purchasers, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, (i) as soon as practicable after such statements and reports are available, a copy of each report or other document furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to Rule 12g3-2(b) under the Exchange Act, any order Act and (ii) such additional information concerning the business and financial condition of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) Company as you may from time to time, time reasonably request (such other information in financial statements to be on a consolidated basis to the possession extent the accounts of the Company concerning are consolidated in reports furnished to its shareholders generally or to the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably requestCommission).
(ae) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts will, upon request, furnish to be marked to show the Trust's absolute ownership CSFBC and any holder of Offered Securities a copy of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Securities.
(f) During the period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and two years after the related Prefunding Closing Date, the Company shall will not, and shall instruct will not permit any of its affiliates (as defined in Rule 144 under the Servicer not Securities Act) to, take resell any action inconsistent with of the Trust's ownership Offered Securities that have been reacquired by any of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreementthem.
(xiig) During the period of two years after the Closing Date, the Company will not be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(h) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided pay all expenses incidental to the Company by each performance of its obligations under this Agreement and the Underwriters and identified by each of them as such Indenture, including (i) no later than the date that fees and expenses of the Prospectus Supplement is filed with respect to "computational materials" Trustee and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or its professional advisers; (ii) no later than two days following their date all expenses in connection with the execution, issue, authentication, packaging and initial delivery of first use with respect the Offered Securities, the preparation of this Agreement, the Offered Securities, the Indenture, the Offering Document and amendments and supplements thereto, the Registration Rights Agreement and any other document relating to "collateral term sheets" the issuance, offer, sale and delivery of the Offered Securities (as such term is interpreted in not including fees of counsel to the No-Action LettersPurchasers); provided(iii) the cost of qualifying the Offered Securities for trading in The Portal-SM- Market ("PORTAL") of The Nasdaq Stock Market, however, that prior to such filing Inc. and any expenses incidental thereto; (iv) the cost of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed advertising requested by the Company in connection with the issue of the Offered Securities; (v) any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities for sale under the laws of such jurisdictions as CSFBC designates and the printing of memoranda relating thereto; (vi) any fees charged by investment rating agencies for the rating of the Offered Securities and (vii) expenses incurred in distributing the Offering Document (including any amendments and supplements thereto) to be materialthe Purchasers. The Company shall file will also pay or reimburse the Purchasers (to the extent incurred by them) for all travel expenses of the Company's officers and employees and any corrected ABS Term Sheets described other expenses of the Company in Section 4(vi) as soon as practicable following receipt thereofconnection with attending or hosting meetings with prospective purchasers of the Offered Securities from the Purchasers.
(xiiii) In connection with the offering, until CSFBC shall have notified the Company of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it 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 Offered Securities.
(j) For a period of 180 days after the date of the initial offering of the Offered Securities by the Purchasers, the Company will not offer, sell, contract to sell, pledge, or otherwise dispose of, directly or indirectly, any United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue or publicly disclose the intention to make such offer, sale, pledge or disposal without the prior consent of CSFBC. The Company will not at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to exemption afforded by Section 2.01(j4(2) of the Servicing AgreementSecurities Act or the safe harbor of Regulation S thereunder, addressed to cease to be applicable to the Underwriters, with respect to the transfer offer and sale of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsOffered Securities.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Documents and will not effect such amendment or supplement without the Representative's ’s consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Purchasers, the Offering Documents or any event occurs as a result of which the Prospectus road-show materials as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify the Representative of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither the Representative’s consent to, nor the Purchasers’ delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 5.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter the Representatives copies of the Registration Statement, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Documents and all amendments and supplements to such documents, in each case as soon as available and in such quantities as each Underwriter may the Representative reasonably requests. While the Offered Securities remain outstanding and are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Company will, during any period in which the Company is not subject to Section 13 or 15(d) of the Exchange Act, for the benefit of holders and beneficial owners from time to time of the Offered Securities, furnish, at its expense, upon request, to holders and beneficial owners of the Offered Securities and prospective purchasers of the Offered Securities designated by such holders the information satisfying the requirements of Rule 144A(d)(4).
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as each Underwriter the Representative designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedOffered Securities by the Purchasers, however, provided that none of the Company shall not or the Subsidiary Guarantors will be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign entity or to take any action which would subject it file a general consent to general or unlimited service of process in any jurisdiction where it is such state.
(d) During the period of one year after the later of the First Closing Date and the last Optional Closing Date, the Company will, upon request, furnish to the Representative, each of the other Purchasers and any holder of Offered Securities a copy of the restrictions on transfer applicable to the Offered Securities.
(e) During the period of one year after the later of the First Closing Date and the last Optional Closing Date, the Company will not, and will not now permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Offered Securities so subject. long as they constitute “restricted securities” under Rule 144 that have been reacquired by any of them, except for Offered Securities purchased by the Company or such affiliates and resold in a transaction registered under the Securities Act.
(f) The Company will promptly advise pay all expenses incidental to the Underwriters performance of its obligations under this Agreement and the Indenture, including (i) the fees and expenses of the receipt Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and the preparation and printing of the Offering Documents and amendments and supplements thereto, if any; (iii) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities; (iv) any notification expenses (including fees and disbursements of counsel) incurred in connection with respect to the suspension or the qualification of the Notes Offered Securities for sale under the laws of such jurisdictions as the Representative designates and the printing of memoranda relating thereto; (v) any fees charged by investment rating agencies for the rating of the Offered Securities; and (vi) expenses incurred in distributing the Offering Documents (including any jurisdiction or amendments and supplements thereto) to the initiation or threat of any proceeding for such purposePurchasers. Except as set forth in this Section 4(f) and in Sections 6 and 8, the Purchasers shall pay their own expenses.
(ixg) In connection with the offering, until the Representative shall have notified the Company and the other Purchasers of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it 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 Offered Securities.
(h) For a period from of 45 days after the date of this Agreement until Agreement, the retirement Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Securities Act relating to, any additional shares of its common stock or securities convertible into or exchangeable or exercisable for any shares of its common stock, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of GS except (i) grants of employee, director, consultant and contractor options, restricted stock, restricted stock units, stock appreciation rights or performance share awards pursuant to the terms of a plan in effect on the date hereof, (ii) issuances of common stock pursuant to the exercise of options or warrants or the vesting of restricted stock units outstanding on the date of the Notesinitial offering of the Offered Securities, (iii) issuances of common stock pursuant to the conversion of preferred stock or contingent convertible senior notes outstanding on the date of the initial offering of the Offered Securities, (iv) issuances of common stock to officers or directors pursuant to any 401(k) or deferred compensation or similar plan in effect on the date hereof, (v) issuances of up to 125,000,000 shares of common stock in exchange for preferred stock, contingent convertible senior notes or senior notes of the Company outstanding on the date of the initial offering of the Offered Securities in accordance with Section 3(a)(9) or Section 4(a)(2) of the Securities Act, (vi) the filing of one or more registration statements on Form S-8 with respect to any incentive compensation plans in effect on the date hereof, and (vii) the issuance of Underlying Shares upon conversion of the Offered Securities.
(i) Neither the Company nor its subsidiaries will at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(a)(2) of the Securities Act to cease to be applicable to the offer and sale of the Offered Securities as contemplated by this Agreement.
(j) The Company will cause the Underlying Shares to be duly authorized and approved for listing by the New York Stock Exchange on or prior to the First Closing Date and ensure that the Underlying Shares remain authorized and approved for listing following the First Closing Date.
(k) Before using, authorizing, approving or referring to any written communication that constitutes an offer to sell or a solicitation to buy the Offered Securities (other than the Offering Documents), the Company will furnish to the Underwriters copies Purchasers and counsel for the Purchasers a copy of such written communication for review and will not use, authorize, approve or refer to any such written communication to which the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectivelyRepresentative reasonably objects.
(x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably request.
(a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xiil) The Company will file apply the net proceeds of the offering and the sale of the Offered Securities in a manner consistent with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted description contained in the No-Action Letters) or (ii) no later than two days following their date Offering Documents under the caption “Use of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereofProceeds.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.”
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative Representatives promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the Representative's Representatives' consent, which consent will not unreasonably be withheldreasonably withheld or delayed. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Act, resale of the Offered Securities by the Purchasers any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify the Representatives of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission or an effect such compliance. Neither the Representatives' consent to, nor the Purchasers' delivery to offerees or investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter the Representatives copies of the Registration StatementPreliminary Offering Circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as each Underwriter may the Representatives reasonably request. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act and any of the Offered Securities remain outstanding, the Company will promptly furnish or cause to be furnished to the Representatives (and, upon request, to each of the other Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions states in the United States as each Underwriter designates the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution resale of the Notes; provided, however, Offered Securities by the Purchasers provided that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposestate.
(ixe) For a During the period from the date of this Agreement until the retirement of the Notes, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably request.
(a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale will, upon request, furnish to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the CompanyRepresentatives, each of the Underwriters must comply with their obligations pursuant to Section 4 other Purchasers and any holder of Offered Securities a copy of the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance restrictions on transfer applicable to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereofOffered Securities.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the Representative's ’s consent, which consent will shall not be unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Act, resale of the Offered Securities by the Purchasers any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include (as of its date or the last date of its amendment or supplementation, whichever is later) an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify the Representative of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither the Representative’s consent to, nor the Purchasers’ delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter the Representative copies of the Registration Statementany Preliminary Offering Circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as the Representative may from time to time request, and the Company will furnish to the Representative on the date hereof three copies of the Final Offering Circular signed by a duly authorized officer of the Company, one of which will include the independent accountants’ reports therein manually signed by such independent accountants. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, for so long as any Offered Securities are outstanding, the Company will promptly furnish or cause to be furnished to the Representative (and, upon request, to each Underwriter may reasonably requestof the other Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging promptly from time to time take such action as any Purchaser may reasonably request to arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter any Purchaser designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; provided, however, Offered Securities by the Purchasers provided that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension such state or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposeprovince.
(ixd) For a During the period from the date of this Agreement until the retirement of the Notesfive years hereafter, the Company will furnish to the Underwriters copies Representative and, upon request, to each of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreementother Purchasers, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such statements year; and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you the Representative and, upon request, to each of the other Purchasers (i) as soon as practicableavailable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by a copy of each report and any definitive proxy statement of the Company filed with the Commission pursuant to under the Exchange ActAct or mailed to stockholders, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (Cii) from time to time, such other information in the possession of the Company concerning the Trust and any other public information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you the Representative may reasonably request.
(ae) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for will, upon request, furnish to the related Prefunded Contracts to be marked to show the Trust's absolute ownership Representative, each of the related Prefunded Contracts other Purchasers and shall cause any holder of Offered Securities a copy of the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Securities.
(f) During the period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and two years after the related Prefunding Closing Date, the Company shall will not, and shall instruct will not permit any of its affiliates (as defined in Rule 144 under the Servicer not Securities Act) to, take resell any action inconsistent with of the Trust's ownership Offered Securities (but not the Exchange Securities) that have been reacquired by any of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreementthem.
(xiig) During the period of two years after the Closing Date, the Company will not be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(h) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided pay all expenses incidental to the Company by each performance of its obligations under the Underwriters and identified by each of them as such Operative Documents including (i) no later than the date that fees and expenses of the Prospectus Supplement is filed with respect to "computational materials" Trustee and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or its professional advisers; (ii) no later than two all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Securities, the preparation and printing of this Agreement, the Registration Rights Agreement, the Offered Securities, the Indenture, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and, as applicable, the Exchange Securities; (iii) the cost of qualifying the Offered Securities for trading in The PortalSM Market (“PORTAL”) of The Nasdaq Stock Market, Inc. and any expenses incidental thereto; (iv) expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities or the Exchange Securities for sale under the laws of such jurisdictions in the United States and Canada as any Purchaser designates and the printing of memoranda relating thereto; (v) any fees charged by investment rating agencies for the rating of the Offered Securities or the Exchange Securities; and (vi) expenses incurred in distributing Preliminary Offering Circulars and the Offering Document (including any amendments and supplements thereto) to the Purchasers. The Purchasers will pay for all travel expenses of the Company’s officers and employees and any other expenses of the Company in connection with attending meetings with prospective purchasers of the Offered Securities, including the cost of an airplane for such travel. It is understood that, except as provided in this Section and in Sections 7 and 9 hereof, the Purchasers will also pay for all travel expenses of the Purchasers’ employees and any other out-of-pocket expenses of the Purchasers in connection with attending or hosting meetings with prospective purchasers of the Offered Securities, the fees of their counsel, transfer taxes on the resale of any of the Offered Securities by them and any advertising expenses connected with any offers they make.
(i) In connection with the Offering (except for purchases disclosed in the Offering Document), until the Representative shall have notified the Company and the other Purchasers of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it 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 Offered Securities.
(j) For a period of 90 days following their after the date of first the initial offering of the Offered Securities by the Purchasers, the Company will not offer, sell, contract to sell, pledge, or otherwise dispose of, directly or indirectly, any United States dollar-denominated debt securities that are substantially similar to the Offered Securities and are issued or guaranteed by the Company or guaranteed by Holdings, and having a maturity of more than one year from the date of issue, without the prior written consent of Credit Suisse First Boston Corporation. The Company will not at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable to the offer and sale of the Securities.
(k) The Company will use its best efforts to effect the inclusion of the Offered Securities in PORTAL and to maintain the listing of the Offered Securities on PORTAL for so long as the Offered Securities (not including the Exchange Securities) are outstanding.
(l) The Company will obtain the approval of DTC for “book-entry” transfer of the Offered Securities, and will comply with all of its agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Offered Securities by DTC for “book-entry” transfer.
(m) The Company will not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect to "collateral term sheets" of any security (as such term is interpreted defined in the No-Action Letters)Securities Act) that would be integrated with the sale of the Offered Securities to the Purchasers or pursuant to exempt resales of the Offered Securities in a manner that would require the registration of any such sale of the Offered Securities under the Securities Act.
(n) The Company will not voluntarily claim, and will actively resist any attempts to claim, the benefit of any usury laws against the holders of any Notes and the related Guaranties.
(o) The Company will cause, as required by the Registration Rights Agreement, and subject to the terms, conditions and limitations thereof, the Registered Exchange Offer to be made in the appropriate form to permit Exchange Securities and guarantees thereof by the Guarantors registered pursuant to the Securities Act to be offered in exchange for the Offered Securities and to comply with all applicable federal and state securities laws in connection with the Registered Exchange Offer.
(p) The Company will comply with all of its agreements set forth in the Registration Rights Agreement; provided, however, that prior to such filing the sole monetary damages for breach of an ABS Term Sheet (other than any ABS Term Sheets that are not based on this obligation and the Contract Pool information) obligations set forth in the preceding paragraph shall be the liquidated damages provided for by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereofRegistration Rights Agreement.
(xiiiq) The Company will cause Xxxxxxx Xxxxx LLP use its reasonable best efforts to deliver to the Underwriters on do and perform all things required or before the Prefunding Closing Date, the opinions required necessary to be furnished pursuant done and performed under this Agreement by it prior to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect and to satisfy all conditions precedent to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) delivery of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing AgreementOffered Securities.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative CSFBC promptly of any proposal to amend or supplement the Registration Statement as filed or the ProspectusOffering Document and, and unless required pursuant to applicable law, will not effect such amendment or supplement supplementation without the RepresentativeCSFBC's consent, which consent will not be unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Purchasers, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify CSFBC of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither CSFBC's consent to, nor the Purchasers' delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter CSFBC copies of the Registration Statement, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Circular and all amendments and supplements to such documents, in each case as soon as available and in such quantities as CSFBC requests, and the Company will furnish to CSFBC on the First Closing Date hereof three copies of the Offering Circular signed by a duly authorized officer of the Company, one of which will include the independent accountants' reports included or incorporated by reference therein manually signed by KPMG LLP. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to CSFBC (and upon request, to each Underwriter may reasonably requestof the other Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter CSFBC reasonably designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedOffered Securities by the Purchasers, however, provided that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any such state or take any action that would subject it to taxation in any jurisdiction where it is has not now so be subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purpose.
(ixd) For a During the period from of two years after the date of this Agreement until the retirement later of the Notes, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, First Closing Date and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably request.
(a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding last Optional Closing Date, the Company shall cause its computer records for the related Prefunded Contracts will, upon request, furnish to be marked CSFBC, and upon request to show the Trust's absolute ownership each of the related Prefunded Contracts other Purchasers, and shall cause any holder of Offered Securities a copy of the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Offered Securities.
(e) During the period of two years after the later of the related Prefunded Contracts First Closing Date and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding last Optional Closing Date, the Company shall will not, and shall instruct will not permit any of its affiliates (as defined in Rule 144 under the Servicer not Securities Act) to, take resell any action inconsistent with of the Trust's ownership Offered Securities that have been reacquired by any of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreementthem.
(xiif) During the period of two years after the later of the First Closing Date and the last Optional Closing Date, the Company will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(g) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided pay all expenses incidental to the Company by each performance of its obligations under this Agreement, the Underwriters Indenture, and identified by each of them as such the Registration Rights Agreement, including (i) no later than the date that fees and expenses of the Prospectus Supplement is filed with respect to "computational materials" Trustee and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or its professional advisers; (ii) no later than two days following their date all expenses in connection with the execution, issue, authentication, packaging and initial delivery of first use the Offered Securities, the preparation and printing of this Agreement, the Registration Rights Agreement, the Offered Securities, the Indenture, the Offering Document and amendments and supplements thereto, and any other document approved by the Company relating to the issuance, offer, sale and delivery of the Offered Securities; (iii) the cost of qualifying the Offered Securities for trading in The Portal-SM- Market ("PORTAL") and any expenses incidental thereto; (iv) the cost of any advertising approved by the Company in connection with respect to "collateral term sheets" the issue of the Offered Securities; (as v) any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities for sale under the laws of such term is interpreted jurisdictions in the No-Action Letters)United States and Canada as CSFBC reasonably designates and the preparation of blue sky memoranda relating thereto; provided(vi) for any fees charged by investment rating agencies for the rating of the Offered Securities; and (vii) for expenses incurred in distributing the Offering Document (including any amendments and supplements thereto) to the Purchasers. It is understood, however, that prior except as provided in this Section and in Section 7, each Purchaser will pay all of its own costs and expenses, including, without limitation, the fees and disbursements of its counsel and transfer taxes on resales of any of the Offered Securities by it.
(h) In connection with the offering, until CSFBC shall have notified the Company and the other Purchasers of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to such filing induce any person to purchase any Offered Securities; and neither it nor any of an ABS Term Sheet 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 Offered Securities.
(i) For a period of 90 days after the date of the initial offering of the Offered Securities by the Purchasers, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue, any shares of Common Stock of the Company or securities convertible into or exchangeable or exercisable for shares of Common Stock of the Company or warrants or other than any ABS Term Sheets that are not based on the Contract Pool information) by rights to purchase shares of Common Stock of the Company, each or publicly disclose the intention to make any such offer, sale, pledge or disposition, without the prior written consent of the Underwriters must comply with their obligations CSFBC, except issuances of Offered Securities, Underlying Shares or Common Stock pursuant to Section 4 the conversion or exchange of convertible or exchangeable securities or the exercise of warrants or options, in each case outstanding on the date hereof, issuances of Common Stock or grants of stock options to employees, officers and directors pursuant to the Company must receive terms of a letter from Xxxxx Xxxxxxxx LLPplan in effect on the date hereof, certified public accountantsissuances of Offered Securities, satisfactory in form and substance the Underlying Shares or Common Stock pursuant to the exercise of such options or issuances of Offered Securities or Common Stock pursuant to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and's dividend reinvestment plan, if in effect on the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be materialdate hereof. The Company shall file will not at any corrected ABS Term Sheets described in time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j4(2) of the Servicing AgreementSecurities Act, addressed or the safe harbors of Regulation S to cease to be applicable to the Underwriters, with respect to the transfer offer and sale of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsOffered Securities.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Cymer Inc)
Certain Agreements of the Company. The Company agrees and the Guarantors, jointly and severally, agree with the Underwriters Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will promptly advise the Representative promptly of any proposal to amend or supplement the Registration Statement as filed Preliminary Offering Memorandum, the Final Offering Memorandum, the General Disclosure Package or the Prospectus, any Supplemental Marketing Material and will not effect such amendment or supplement without the Representative's ’s consent, which such consent will not to be unreasonably be withheld. The Company will also advise the Representative promptly of any request timely file all reports required to be filed by the Commission for any amendment of or supplement Company pursuant to the Registration Statement or the Prospectus or for any additional information Section 13(a), 13(c) and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and 15(d) of the issuance Exchange Act for so long as deliveries of an offering memorandum are being made by the Commission of any stop order suspending Purchasers in connection with the effectiveness offering or sale of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) Securities. If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Securities by the Purchasers, any there occurs an event occurs or development as a result of which any document included in the Prospectus as then amended Preliminary Offering Memorandum or supplemented the Final Offering Memorandum, the General Disclosure Package or any Supplemental Marketing Material, if republished immediately following such event or development, included or would include an untrue statement of a material fact or omitted or would 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, not misleading, or if it is otherwise necessary at any time to amend the Prospectus or supplement any such document in order to comply with the Actlaw, the Company promptly will notify the Representative of such event and promptly will prepare and file with the Commission (subject furnish, at its own expense, to the Purchasers and the dealers and to any other dealers at the request of the Representative's prior review pursuant to paragraph (ii) of this Section 5) , an amendment or supplement which will correct such statement or omission omission, or an so that such that such document will comply with applicable law. Neither the Representative’s consent to, nor the Purchasers’ delivery to offerees or investors of, any such amendment or supplement which will effect shall constitute a waiver of any of the conditions set forth in Section 6. The third sentence of this subsection does not apply to statements in or omissions from any document in the Preliminary Offering Memorandum or the Final Offering Memorandum, the General Disclosure Package or any Supplemental Marketing Material made in reliance upon and in conformity with written information furnished to the Company by the Purchasers specifically for use therein, it being understood and agreed that the only such complianceinformation is that described as such in Section 8(b) hereof.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter the Representative copies of the Registration StatementPreliminary Offering Memorandum, each other document comprising a part of the General Disclosure Package, the Prospectus and any preliminary Prospectus Supplement related thereto and Final Offering Memorandum, all amendments and supplements to such documentsdocuments and each item of Supplemental Marketing Material, in each case as soon as available and in such quantities as the Representative reasonably requests. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to the Representative and, upon request, to each Underwriter may reasonably requestof the other Purchasers and, upon request of holders and prospective purchasers of the Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter the Representative designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedSecurities by the Purchasers, however, provided that the Company shall will not be obligated required to qualify as a foreign limited partnership or to do business file a general consent to service of process in any such jurisdiction in which it is not currently so qualified or to take any action which that would subject it itself to general taxation based on income or unlimited service of process revenues in any such jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect currently subject to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposetaxation.
(ixd) For a During the period from of one year after the date of this Agreement until the retirement of the NotesClosing Date, the Company will furnish to the Underwriters copies Representative and, upon request, to each of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreementother Purchasers, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any end of each fiscal year, a copy of the Notes are outstanding, Company’s annual report for such year; and the Company will furnish to you the Representative and, upon request, to each of the other Purchasers as soon as practicableavailable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by a copy of each report and any definitive proxy statement of the Company and of any Guarantor that is a reporting company filed with the Commission pursuant under the Exchange Act or mailed to unitholders. However, so long as the Company timely files reports with the Commission on its Electronic Data Gathering, Analysis and Retrieval system as if the Company were subject to the reporting requirements of either Section 13 or Section 15(d) of the Exchange Act, any order of it is not required to furnish such reports or statements to the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably requestPurchasers.
(ae) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and one year after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for will, upon reasonable request, furnish to the related Prefunded Contracts to be marked to show the Trust's absolute ownership Representative, each of the related Prefunded Contracts other Purchasers and shall cause any holder of Securities a copy of the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Securities.
(f) During the period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and one year after the related Prefunding Closing Date, the Company shall will not, and will not permit any of its Affiliates to, resell any of the Securities that have been reacquired by any of them. Neither the Company nor any Affiliate will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would be integrated with the sale of the Securities in a manner that would require the registration under the Securities Act of (i) the sale of the Securities by the Company and the Guarantors to the Purchasers, (ii) the resale of the Securities by the Purchasers to any subsequent purchasers or (iii) the resale of the Securities by such subsequent purchasers to others.
(g) None of the Company, the Guarantors, or their respective Affiliates, or any person acting on their behalf (other than any Purchaser, as to whom the Company and the Guarantors make no representations) will engage in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) in connection with any offer or sale of the Securities in the United States or in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act or engage in any directed selling efforts (as that term is defined in Regulation S) in the United States with respect to the Securities, and the Company, the Guarantors and their respective Affiliates and each person acting on its or their behalf (other than the Purchasers) will comply with the offering restrictions requirement of Regulation S.
(h) The Company will cooperate with the Purchasers and use its best efforts to permit the Securities to be eligible for clearance and settlement through DTC, Euroclear and Clearstream, Luxembourg.
(i) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay all expenses incidental to the performance of its obligations under this Agreement, the Indenture and the Registration Rights Agreement, including but not limited to: (i) the fees and expenses of the Trustee and any transfer agent, registrar or depositary and their professional advisers for which the Company is responsible; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Securities, including any withholding, stamp, transfer or other similar taxes in connection with the original issuance and sale of Securities, the preparation and printing of this Agreement, the Securities, the Indenture, the Registration Rights Agreement, the Preliminary Offering Memorandum, any other documents comprising any part of the General Disclosure Package, the Final Offering Memorandum, all amendments and supplements thereto, each item of Supplemental Marketing Material and any other document relating to the issuance, offer, sale and delivery of the Securities, including the fees, disbursements and expenses of the Company’s counsel, Company’s accountants and any other advisors to the Company; (iii) the cost of any advertising approved by the Company in connection with the issue of the Securities; (iv) any expenses (including reasonable fees and disbursements of counsel to the Purchasers) incurred in connection with qualification of the Securities for sale under the laws of such jurisdictions in the United States and Canada as the Representative designates and the preparation and printing of memoranda relating thereto; (v) any fees charged by investment rating agencies for the rating of the Securities; (vi) expenses incurred in distributing the Preliminary Offering Memorandum, any other documents comprising any part of the General Disclosure Package, the Final Offering Memorandum (including any amendments and supplements thereto, including any form of electronic distribution) and any Supplemental Marketing Material to the Purchasers; (vii) all reasonable and documented out-of-pocket expenses (other than the fees, expenses and disbursements of counsel to the Purchasers) incurred by the Representative in connection with the transactions contemplated in this Agreement; and (viii) all other reasonable and documented costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. The Company will also pay or reimburse the Representative (to the extent incurred by it) for reasonable, documented, out-of-pocket costs and expenses of the Representative and the Company’s officers and employees relating to investor presentations on any “road show” in connection with the offering and sale of the Securities including, without limitation, any such travel expenses of the Company’s officers and employees and any other expenses of the Company including, subject to prior approval by the Company, 50% of the cost of chartering of airplanes.
(j) The Company will use the net proceeds received in connection with the offering of the Securities in the manner described in the “Use of Proceeds” section of the General Disclosure Package.
(k) In connection with the offering of the Securities, until the Representative shall instruct have notified the Servicer Company of the completion of the resale of the Securities, neither the Company nor any of its Affiliates will, 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 any Securities or attempt to induce any person to purchase any Securities; and neither it 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 Securities.
(l) Until the Closing Date, the Company and the Guarantors will not, directly or indirectly, take any of the following actions with respect to any United States dollar-denominated debt securities issued or guaranteed by the Company or the Guarantors and having a maturity of more than one year from the date of issue or any securities convertible or exchangeable or exercisable for any such securities (“Lock-Up Securities”): (i) offer, sell, issue, contract to sell, pledge or otherwise dispose of Lock-Up Securities, (ii) offer, sell, issue, contract to sell, contract to purchase or grant any option, right or warrant to purchase Lock-Up Securities, (iii) enter into any swap, hedge or any other agreement that transfers, in whole or in part, the economic consequences of ownership of Lock-Up Securities, (iv) establish or increase a put equivalent position or liquidate or decrease a call equivalent position in Lock-Up Securities within the meaning of Section 16 of the Exchange Act or (v) file with the Commission a registration statement under the Securities Act relating to Lock-Up Securities or publicly disclose the intention to take any such action (other than as contemplated by this Agreement and the Registration Rights Agreement or in connection with pre-existing obligations with respect to debt securities issued under the Base Indenture), without the prior written consent of the Representative. The Company and the Guarantors will not toat any time directly or indirectly, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided referred to the Company by each of the Underwriters and identified by each of them as such in clauses (i) no later than the date that the Prospectus Supplement is filed through (v) above with respect to "computational materials" and "structural terms sheets" (as any securities under circumstances where such terms are interpreted in offer, sale, pledge, contract or disposition would cause the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) exemption afforded by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j4(a)(2) of the Servicing Agreement, addressed Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the Underwriters, with respect to the transfer offer and sale of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsSecurities.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Cheniere Energy Partners, L.P.)
Certain Agreements of the Company. The Company agrees with the several Underwriters that:
(ia) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative Representatives promptly of any proposal to amend or supplement the Preliminary Prospectus, the General Disclosure Package or the Prospectus and will not effect such filing pursuant amendment or supplementation without the Representatives’ consent (which consent shall not be unreasonably withheld). If, at any time prior to Rule 424(b)the completion of the resale of the Shares by the Underwriters, any event occurs as a result of which the Preliminary Prospectus, the Prospectus or the General Disclosure Package or any Supplemental Marketing Material would include an 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, not misleading, the Company promptly will notify the Representatives of such event and promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission. Neither the Representatives’ consent to, nor the Underwriters’ delivery to offerees or investors of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5.
(iib) Prior to the termination of the offering of the NotesShares, the Company will not file any amendment of to the Registration Statement or supplement (including the Prospectus or any Preliminary Prospectus) to the Base Prospectus unless the Company has furnished the Representative with you a copy for its your review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, to which consent will not unreasonably be withheldyou reasonably object. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the The Company will file cause the Prospectus, properly completed, and any supplement theretothereto to be filed in a form approved by the Representatives, such approval not to be unreasonably withheld, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative Representatives of such timely filing.
(iii) . The Company will promptly advise the Representative promptly of any proposal to amend or supplement the Registration Statement as filed or Representatives (i) when the Prospectus, and will not effect such any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Shares, any amendment to the Registration Statement shall have been filed or supplement without the Representative's consentbecome effective, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly (iii) of any request by the Commission or its staff for any amendment of or supplement to the Registration Statement or for any supplement to the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threat threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act, (v) of the receipt by the Company of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act and (vi) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose, and the . The Company will use its best efforts to prevent the issuance of any such stop order and or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the lifting withdrawal of any issued ordersuch stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(vc) If, at any time when a Prospectus prospectus relating to the Notes Securities is required to be delivered under the ActSecurities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Prospectus as then amended or supplemented would include an any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were mademade at such time, not misleading, or if it is shall be necessary at any time to amend the Registration Statement, file a new registration statement or supplement the Prospectus to comply with the ActSecurities Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Prospectus, the Company promptly will (i) notify the Representatives of any such event, (ii) subject to the first two sentences of Section 4(b) above, prepare and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) an amendment or supplement or new registration statement which will correct such statement or omission or an amendment or supplement which will effect such compliance, (iii) use its 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 Prospectus and (iv) supply any supplemented Prospectus to you in such quantities as you may reasonably request.
(vid) As soon as practicable, the Company will cause the Trust to make generally available to its security holders and to the Noteholders and the holders of the Residual Interest Instruments of the Trust Representatives an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder158.
(viie) The Company will furnish to each Underwriter the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration StatementStatement (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 an Underwriter or dealer may be required by the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Communication and any preliminary Prospectus Supplement related supplement thereto and all amendments and supplements to such documents, in each case as soon as available and in such quantities as each Underwriter the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(viiif) Before making, preparing, using, authorizing, approving or referring to any Issuer Free Writing Communication, the Company will furnish to the Representatives and counsel for the Underwriters a copy of such written communication for review and will not make, prepare, use, authorize, approve or refer to any such written communication to which the Representatives reasonably object.
(g) The Company will cooperate with each Underwriter the Underwriters in arranging for connection with the qualification of the Notes Shares for sale and the determination of their eligibility for investment under the laws of such jurisdictions states in the United States as each Underwriter designates the Representatives designate and will continue such qualifications in effect so long as required for the distribution resale of the NotesShares by the Underwriters provided that the Company will not be required to qualify as a foreign corporation or to file a general consent to service of process in any such state.
(h) The Company agrees that, unless it has or shall have obtained the prior written consent of the Representatives, and each Underwriter, severally and not jointly, agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Communication or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the final term sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule B hereto and any electronic road show. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Communication and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company consents to the use by any Underwriter of a free writing prospectus that (i) is not an “issuer free writing prospectus” as defined in Rule 433 or (ii) contains only (A) information describing the preliminary terms of the Shares or their offering, (B) information that describes the final terms of the Shares or their offering and that is included in the final term sheet of the Company or (C) information permitted under Rule 134 under the Securities Act; provided that each Underwriter severally covenants with the Company not to take any action without the Company’s consent which consent shall be confirmed in writing that would result in the Company being required to file with the Commission under Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of such Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
(j) The Company will assist the Underwriters in arranging for the Shares to be eligible for clearance and settlement through DTC.
(k) During the period of two years after the Closing Date, the Company will not be, or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(l) The Company will pay all expenses incidental to the performance of their obligations under this Agreement including (i) all expenses in connection with the issue, registration and initial delivery of the Shares, the preparation and printing of this Agreement, the Registration Statement, the Shares, the Preliminary Prospectus, any other documents comprising any part of the General Disclosure Package, the Prospectus, all amendments and supplements thereto, each item of Supplemental Marketing Material and any other document relating to the issuance, offer, sale and delivery of the Shares; (ii) the cost of any advertising approved by the Company in connection with the issue of the Shares; (iii) for any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Shares for sale under the laws of such jurisdictions as the Representatives designate and the printing of memoranda relating thereto; (iv) for any fees charged by investment rating agencies for the rating of the Shares; (v) for expenses incurred in the distribution and filing with the Commission of the Registration Statement, the Preliminary Prospectus, any other documents comprising any part of the General Disclosure Package, the Prospectus (including any amendments and supplements thereto) and any Supplemental Marketing Material to the Underwriters and (vi) any filings required to be made with the Financial Industry Regulatory Authority, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings). The Company will reimburse the Underwriters for all travel expenses of the Underwriters and the Company’s officers and employees and any other expenses of the Underwriters and the Company in connection with attending or hosting meetings with prospective purchasers of the Shares.
(m) The Company will pay the registration fee for this offering within the time period required by Rule 456(b)(1) under the Securities Act (without giving effect to the proviso therein) and in any event prior to the Closing Date.
(n) In connection with the offering, until the Representatives shall have notified the Company and the other Underwriters of the completion of the resale of the Shares, except as set forth in the General Disclosure Package neither the Company nor any of its affiliates has or will, 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 any Shares or attempt to induce any person to purchase any Shares; and neither it 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 Shares.
(o) During the period beginning on the date hereof and ending on the Closing Date, the Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Securities Act relating to, any shares of Preferred Stock or equity securities similar to or ranking on par with or senior to the Preferred Stock or any securities convertible into or exercisable or exchangeable for Preferred Stock or any securities convertible into or exercisable or exchangeable for Preferred Stock or similar, parity or senior equity securities or any debt securities issued or guaranteed by the Company, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing. For the avoidance of doubt, nothing in this Section 4(o) shall prohibit the Company from entering into or consummating any securitization transactions or from incurring indebtedness under any Bank Lines, Credit Enhancement Agreements, Refinancing Indebtedness, Residual Funding Facilities or Permitted Receivables Financing or any indebtedness incurred by any Receivables Entity (in each case, as defined in the General Disclosure Package and the Prospectus).
(p) The Company will apply the net proceeds from the sale of the Shares as described in each of the General Disclosure Package and the Prospectus under the heading “Use of Proceeds.”
(q) The Company will not take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Shares; provided, however, that nothing herein shall prevent or prohibit the Company shall not be obligated Company’s election to qualify to do business in any jurisdiction in which it is not currently so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purpose.
(ix) For a period from the date of this Agreement until the retirement of the Notes, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission redeem notes pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information optional redemption provisions set forth in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably requestapplicable indenture.
(a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Samples: Underwriting Agreement (General Motors Financial Company, Inc.)
Certain Agreements of the Company. The Company Each of the Issuers, jointly and severally, agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative CSFBC promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the RepresentativeCSFBC's consent, which consent will shall not be unreasonably be withheldwithheld or delayed. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Purchasers, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify CSFBC of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission or an effect such compliance. Neither CSFBC's consent to, nor the Purchasers' delivery of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter CSFBC copies of the Registration Statementany preliminary offering circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as each Underwriter may CSFBC reasonably requests. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to CSFBC (and, upon request, to the other Purchaser) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as each Underwriter CSFBC reasonably designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; provided, however, that the Company shall not be obligated to qualify to do business in any jurisdiction in which it is not currently so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt Offered Securities by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposePurchasers.
(ixd) For a During the period from the date of this Agreement until the retirement of the Notestwo years hereafter, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered CSFBC and, upon request, to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreementother Purchaser, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such statements year; and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you CSFBC and, upon request, to the other Purchaser, as soon as practicableavailable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by a copy of each other report and any definitive proxy statement of the Company filed with the Commission pursuant to under the Exchange Act, any order of the Commission thereunder or pursuant mailed to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably requeststockholders.
(ae) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for will, upon request, furnish to CSFBC and the related Prefunded Contracts to be marked to show the Trust's absolute ownership other Purchaser and any holder of Offered Securities a copy of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Offered Securities.
(f) During the period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and two years after the related Prefunding Closing Date, the Company shall will not, and shall instruct will not permit any of its affiliates (as defined in Rule 144 under the Servicer not Securities Act) to, take resell any action inconsistent with of the Trust's ownership Offered Securities that have been reacquired by any of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreementthem.
(xiig) During the period of two years after the Closing Date, each of the Issuers will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(h) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided pay all expenses incidental to the Company by each performance of its obligations under this Agreement and the Underwriters and identified by each of them as such Indenture, including (i) no later than the date that fees and expenses of the Prospectus Supplement is filed with respect to "computational materials" Trustee and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or its professional advisers; (ii) no later than two days following their date of first use all expenses in connection with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); providedexecution, howeverissuance, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Companyauthentication, each packaging and initial delivery of the Underwriters must comply with their obligations pursuant to Section 4 Offered Securities, the preparation and printing of this Agreement, the Company must receive a letter from Xxxxx Xxxxxxxx LLPIndenture, certified public accountantsthe Offered Securities, satisfactory in form the Offering Document and substance amendments and supplements thereto, and any other document relating to the Companyissuance, to offer, sale and delivery of the effect that such accountants have performed certain specified procedures, all Offered Securities; (iii) the cost of which have been agreed to by listing the Company, as a result Offered Securities and qualifying the Offered Securities for trading in The PortalSM Market ("PORTAL") and any expenses incidental thereto; (iv) the cost of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed any advertising approved by the Company in connection with the issue of the Offered Securities; (v) any expenses (including reasonable fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities for sale under the laws of such jurisdictions as CSFBC designates and the printing of memoranda relating thereto; (vi) any fees charged by investment rating agencies for the rating of the Offered Securities; and (vii) expenses incurred in distributing the Offering Document (including any amendments and supplements thereto) to be materialthe Purchasers. The Company shall file will also pay for any corrected ABS Term Sheets described travel expenses of the Company's officers and employees and any other expenses of the Company in Section 4(vi) as soon as practicable following receipt thereofconnection with attending or hosting meetings with prospective purchasers of the Offered Securities.
(xiiii) The In connection with the offering, until CSFBC shall have notified the Company and the other Purchaser of the completion of the resale by the Purchasers of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it nor any of its affiliates will cause Xxxxxxx Xxxxx LLP make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Offered Securities.
(j) During the period beginning on the date hereof and continuing to deliver to and including the Underwriters on or before the Prefunding Closing Date, none of the opinions required Issuers will offer, sell, contract to be furnished pursuant sell, announce their intention to sell, pledge or otherwise dispose of, directly or indirectly, any United States dollar denominated debt securities issued or guaranteed by any of the Issuers and having a maturity of more than one year from the date of issue. None of the Issuers will at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 2.01(j4(2) of the Servicing Agreement, addressed Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the Underwriters, with respect to the transfer offer and sale of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsOffered Securities.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Terex Corp)
Certain Agreements of the Company. The Company agrees with the Underwriters Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will promptly advise the Representative promptly Representatives of any proposal to amend or supplement the Registration Statement as filed Preliminary Offering Circular or the Prospectus, Final Offering Circular and will not effect such amendment or supplement without the Representative's Representatives' consent, which such consent will not to be unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the completion of the resale of the Notes is required to be delivered under by the ActPurchasers, any there occurs an event occurs or development as a result of which any document included in the Prospectus as then amended Preliminary Offering Circular or supplemented the Final Offering Circular, the General Disclosure Package or any Supplemental Marketing Material, if republished immediately following such event or development, included or would include an untrue statement of a material fact or omitted or would 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will notify the Representatives of such event and promptly will prepare and file with the Commission (subject furnish, at its own expense, to the Representative's prior review pursuant Purchasers and the dealers and to paragraph (ii) any other dealers at the request of this Section 5) the Representatives, an amendment or supplement which will correct such statement or omission omission. Neither the Representatives' consent to, nor the Purchasers' delivery to offerees or an investors of, any such amendment or supplement which will effect shall constitute a waiver of any of the conditions set forth in Section 6. The first sentence of this subsection does not apply to statements in or omissions from any document in the Preliminary Offering Circular or Final Offering Circular, the General Disclosure Package or any Supplemental Marketing Material made in reliance upon and in conformity with written information furnished to the Company by the Purchasers specifically for use therein, it being understood and agreed that the only such complianceinformation is that described as such in Section 8(b) hereof.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter the Representatives copies of the Registration StatementPreliminary Offering Circular, each other document comprising a part of the General Disclosure Package, the Prospectus and any preliminary Prospectus Supplement related thereto and Final Offering Circular, all amendments and supplements to such documentsdocuments and each item of Supplemental Marketing Material, in each case as soon as available and in such quantities as each Underwriter may the Representatives reasonably request. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to the Representatives and, upon request, to each of the other Purchasers and, upon request of holders and prospective purchasers of the Notes, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Notes pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Notes. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter designates the Representatives designate and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedNotes by the Purchasers, however, provided that the Company shall will not be obligated required to qualify as a foreign limited partnership or to do business file a general consent to service of process in any such jurisdiction in which it is not currently so qualified or to take any action which that would subject it itself to general taxation based on income or unlimited service of process revenues in any such jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect currently subject to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposetaxation.
(ixd) For a During the period from of one year after the date of this Agreement until the retirement of the NotesClosing Date, the Company will furnish to the Underwriters copies Representatives and, upon request, to each of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreementother Purchasers, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any end of each fiscal year, a copy of the Notes are outstanding, Company's annual report for such year and a copy of the equivalent report of any Guarantor that is a reporting company for such year; and the Company will furnish to you the Representatives and, upon request, to each of the other Purchasers as soon as practicableavailable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by a copy of each report and any definitive proxy statement of the Company and of any Guarantor that is a reporting company filed with the Commission pursuant under the Exchange Act or mailed to unitholders. However, so long as the Company timely files reports with the Commission on its Electronic Data Gathering, Analysis and Retrieval system (“XXXXX”) as if the Company were subject to the reporting requirements of either Section 13 or Section 15(d) of the Exchange Act, any order of it is not required to furnish such reports or statements to the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably requestPurchasers.
(ae) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and one year after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for will, upon reasonable request, furnish to the related Prefunded Contracts to be marked to show the Trust's absolute ownership Representatives, each of the related Prefunded Contracts other Purchasers and shall cause any holder of Notes a copy of the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Notes.
(f) During the period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and one year after the related Prefunding Closing Date, the Company shall will not, and will not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been reacquired by any of them.
(g) During the period of one year after the Closing Date, the Company will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(h) None of the Company, its affiliates, or any person acting on their behalf will engage in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) in connection with any offer or sale of the Notes in the United States.
(i) The Company will cooperate with the Purchasers and use its best efforts to permit the Notes to be eligible for clearance and settlement through DTC, Euroclear and Clearstream, Luxembourg.
(j) The Company will pay all expenses incidental to the performance of its respective obligations under this Agreement, the Indenture and the Security Documents, including but not limited to: (i) the fees and expenses of the Trustee, the Collateral Agent and their professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Notes, including any stamp or transfer taxes in connection with the original issuance and sale of Notes, the preparation and printing of this Agreement, the Security Documents, the Notes, the Indenture, the Preliminary Offering Circular, any other documents comprising any part of the General Disclosure Package, the Final Offering Circular, all amendments and supplements thereto, each item of Supplemental Marketing Material and any other document relating to the issuance, offer, sale and delivery of the Notes; (iii) all filing costs and expenses relating to the perfection of security interests in the Collateral, as set forth in the Security Documents; (iv) the cost of qualifying the Notes for trading in The Portal Market (“PORTAL”) and any expenses incidental thereto; (v) the cost of any advertising approved by the Company in connection with the issue of the Notes; (vi) any expenses (including reasonable fees and disbursements of counsel to the Purchasers) incurred in connection with qualification of the Notes for sale under the laws of such jurisdictions in the United States and Canada as the Representatives designate and the preparation and printing of memoranda relating thereto; (vii) any fees charged by investment rating agencies for the rating of the Notes; and (viii) expenses incurred in distributing the Preliminary Offering Circular, any other documents comprising any part of the General Disclosure Package, the Final Offering Circular (including any amendments and supplements thereto) and any Supplemental Marketing Material to the Purchasers. The Company will also pay or reimburse the Purchasers (to the extent incurred by them) for reasonable, documented, out-of-pocket costs and expenses of the Purchasers and the Company's general partner's officers and employees relating to investor presentations on any “road show” in connection with the offering and sale of the Notes including, without limitation, any such travel expenses of the Company's general partner's officers and employees and any other expenses of the Company including the chartering of airplanes.
(k) The Company will use the net proceeds received in connection with the offering of the Notes in the manner described in the “Use of Proceeds” section of the General Disclosure Package.
(l) In connection with the offering of the Notes, until the Representatives shall instruct have notified the Servicer Company of the completion of the resale of the Notes, neither the Company nor any of its affiliates will, 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 any Notes or attempt to induce any person to purchase any Notes; and neither it 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.
(m) Until the Closing Date, the Company will not, directly or indirectly, take any of the following actions with respect to any United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue or any securities convertible or exchangeable or exercisable for any such securities (“Lock-Up Securities”): (i) offer, sell, issue, contract to sell, pledge or otherwise dispose of Lock-Up Securities, (ii) offer, sell, issue, contract to sell, contract to purchase or grant any option, right or warrant to purchase Lock-Up Securities, (iii) enter into any swap, hedge or any other agreement that transfers, in whole or in part, the economic consequences of ownership of Lock-Up Securities; (iv) establish or increase a put equivalent position or liquidate or decrease a call equivalent position in Lock-Up Securities within the meaning of Section 16 of the Exchange Act or (v) file with the Commission a registration statement under the Securities Act relating to Lock-Up Securities or publicly disclose the intention to take any such action, without the prior written consent of Credit Suisse. The Company will not toat any time directly or indirectly, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided referred to the Company by each of the Underwriters and identified by each of them as such in clauses (i) no later than the date that the Prospectus Supplement is filed through (v) above with respect to "computational materials" and "structural terms sheets" (as any securities under circumstances where such terms are interpreted in offer, sale, pledge, contract or disposition would cause the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) exemption afforded by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j4(a)(2) of the Servicing Agreement, addressed Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the Underwriters, with respect to the transfer offer and sale of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsNotes.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees Issuers agree with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative CSFBC promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the RepresentativeCSFBC's consent, which consent will not be unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Purchasers, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify CSFBC of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither CSFBC's consent to, nor the Purchasers' delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter CSFBC copies of the Registration Statementany preliminary offering circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as CSFBC requests, and the Company will furnish to CSFBC on the date hereof three copies of the Offering Document. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to CSFBC (and, upon request, to each Underwriter may reasonably requestof the other Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company Issuers will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter CSFBC designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedOffered Securities by the Purchasers, however, provided that the Company shall Issuers will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposestate.
(ixd) For a During the period from the date of this Agreement until the retirement of the Notes, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, ten years hereafter or such shorter period as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you CSFBC and, upon request, to each of the other Purchasers, as soon as practicablepracticable after the end of each fiscal year, (A) all documents distributed, or caused a copy of its annual report to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by stockholders for such year; and the Company will furnish to CSFBC and, upon request, to each of the other Purchasers (i) as soon as available, a copy of each report and any definitive proxy statement of the Company filed with the Commission pursuant to under the Exchange ActAct or mailed to stockholders, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (Cii) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available Issuers as you CSFBC may reasonably request.
(ae) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date the Company shall will, upon request, furnish to CSFBC, each of the other Purchasers and any holder of Offered Securities a copy of the restrictions on transfer applicable to the Offered Securities.
(f) During the period of two years after the Closing Date the Issuers will not, and shall instruct will not permit any of their affiliates (as defined in Rule 144 under the Servicer not Securities Act) to, take resell any action inconsistent with of the Trust's ownership Offered Securities that have been reacquired by any of such Funded Contractsthem.
(g) During the period of two years after the Closing Date, other than as permitted by none of the Issuers will be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(h) The Company will pay all expenses incidental to the performance of its obligations under this Agreement, the Indenture and the Trust Registration Rights Agreement, including (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Securities (as defined in the Registration Rights Agreement), the preparation and printing of this Agreement, the Registration Rights Agreement, the Offered Securities, the Indenture, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and, as applicable, the Exchange Securities; (iii) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities or the Exchange Securities; (iv) any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities or the Exchange Securities for sale under the laws of such jurisdictions in the United States and Canada as CSFBC designates and the printing of memoranda relating thereto; (v) any fees charged by investment rating agencies for the rating of the Securities or the Exchange Securities; (vi) expenses incurred in distributing preliminary offering circulars and the Offering Document (including any amendments and supplements thereto) to the Purchasers; and (vii) all fees and expenses of its counsel. The Company will also pay or reimburse the Purchasers (to the extent incurred by them) for all travel expenses of the Company's officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities from the Purchasers. Such amount may be deducted from the purchase price for the Offered Securities set forth in Section 3 hereof.
(bi) On In connection with the offering, until CSFBC shall have notified the Company and the other Purchasers of the completion of the resale of the Offered Securities, neither the Issuers nor any of their affiliates has or before will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it nor any of its affiliates will make bids or purchases for the related Prefunding Closing Datepurpose of creating actual, or apparent, active trading in, or of raising the price of, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust AgreementOffered Securities.
(xiij) The Company will file with For a period of 60 days after the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each date of the Underwriters initial offering of the Offered Securities by the Purchasers, neither the Issuers nor any of their affiliates will offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any United States dollar-denominated debt securities issued or guaranteed by any of the Issuers and identified by each having a maturity of them as such (i) no later more than one year from the date that of issue. Neither the Prospectus Supplement is filed with respect Issuers nor any of their affiliates will at any time offer, sell, contract to "computational materials" and "structural terms sheets" (as sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such terms are interpreted in offer, sale, pledge, contract or disposition would cause the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) exemption afforded by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j4(2) of the Servicing Agreement, addressed Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the Underwriters, with respect to the transfer offer and sale of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsOffered Securities.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative CSFB promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the Representative's CSFB’s consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Purchasers, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify CSFB of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither CSFB’s consent to, nor its delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter CSFB copies of the Registration Statementany preliminary offering circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as CSFB requests. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to CSFB (and, upon request, to each Underwriter may reasonably requestof the other Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter CSFB designates and will continue such qualifications in effect so long as reasonably required for the distribution resale of the Notes; providedOffered Securities by the Purchasers, however, provided that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposestate.
(ixd) For a During the period from the date of this Agreement until the retirement of the Notesthree years hereafter, the Company will furnish to the Underwriters copies CSFB and, upon request, to each of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreementother Purchasers, as soon as practicable after the end of each fiscal year, a copy of its annual report to shareholders for such statements year; and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you CSFB and, upon request, to each of the other Purchasers (i) as soon as practicableavailable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company a copy of each report and any definitive proxy statement it filed with the Commission pursuant to under the Exchange Act, any order of the Commission thereunder Act or pursuant mailed to a "no-action" letter from the staff of the Commission shareholders and (Cii) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available the Company as you CSFB may reasonably request; provided that unless specifically so requested, no such documents, reports or information shall be required to be furnished to CSFB or the other Purchasers to the extent any such document, report or information is readily available on the Internet.
(ae) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts will, upon request, furnish to be marked to show the Trust's absolute ownership CSFB, each of the related Prefunded Contracts other Purchasers and shall cause any holder of Offered Securities a copy of the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Offered Securities.
(f) During the period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and two years after the related Prefunding Closing Date, the Company shall notwill not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Offered Securities that have been reacquired by any of them.
(g) During the period of two years after Closing Date, the Company will not be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(h) The Company will pay all expenses incidental to the performance of its obligations under this Agreement, the Indenture and the Registration Rights Agreement, including (i) the fees and expenses of counsel and accountants for the Company and of the Trustee and its professional advisors; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Securities, and the printing of the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and, as applicable, the Exchange Securities; (iii) the cost of listing the Offered Securities and qualifying the Offered Securities for trading in The PortalSM Market (“PORTAL”) and any expenses incidental thereto; (iv) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities; (v) for any expenses (including reasonable fees and disbursements of counsel to the Purchasers) incurred in connection with qualification of the Offered Securities or the Exchange Securities for sale under the laws of such jurisdictions in the United States and Canada as CSFB designates and the printing of memoranda relating thereto; (vi) for any fees charged by investment rating agencies for the rating of the Offered Securities or the Exchange Securities; and (vii) for expenses incurred in printing and distributing any Offering Document (including any amendments and supplements thereto) to or at the direction of the Purchasers. The Company will also pay or reimburse the Purchasers (to the extent incurred by them) for all travel expenses of the Purchasers and the Company’s officers and employees and any other expenses of the Purchasers and the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities from the Purchasers.
(i) In connection with the offering, until CSFB shall instruct have notified the Servicer not Company and the other Purchasers of the completion of the resale of the Offered Securities, neither the Company nor any its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither the Company nor 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 Offered Securities.
(j) Without the prior written consent of the Purchasers, for a period of 180 days after the date of the initial offering of the Offered Securities by the Purchasers, neither the Company nor any of its subsidiaries will offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Securities Act relating to, any United States dollar-denominated debt securities issued or guaranteed by the Company or any of the Company’s subsidiaries and having a maturity of more than one year from the date of issue. Neither the Company nor any of its subsidiaries will at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the offer and sale of the Offered Securities.
(k) The Company will use the net proceeds from the sale of the Offered Securities in substantially the manner described in the Offering Document under the caption “Use of Proceeds”.
(l) Neither the Company nor any of its subsidiaries will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would be integrated with the sale of the Offered Securities in a manner that would require the registration under the Securities Act of the sale to the Purchasers of the Offered Securities or to take any other action inconsistent with that would result in the Trust's ownership resale of such Prefunded Contractsthe Offered Securities not being exempt from registration under the Securities Act.
(m) Neither the Company nor any of its subsidiaries will take, other than 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 any security of the Company to facilitate the resale of the Offered Securities. Except as permitted by the Indenture and Securities Act, the Trust Agreement.
(xii) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each of the Underwriters and identified by each of them as such not distribute any (i) no later than preliminary offering memorandum or offering memorandum, including without limitation, the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) Offering Document, or (ii) no later than two days following their date of first use other offering material in connection with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each offering and sale of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereofOffered Securities.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative CSFBL promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the RepresentativeCSFBL's consent, consent (which consent will shall not be unreasonably be withheldwithheld or delayed). The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Purchasers, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify CSFBL of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither CSFBL's consent to, nor the Purchasers' delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter CSFBL copies of the Registration Statement, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documentsthereto, in each case as soon as available and in such quantities as each Underwriter may reasonably requestCSFBL requests, and the Company will furnish to CSFBL on the date hereof three copies of the Offering Circular signed by a duly authorized officer of the Company, one of which will include the independent accountants' reports therein manually signed by such independent accountants. At any time when any Offered Securities or Exchange Securities constitute restricted securities as defined under Rule 144 of the Securities Act and the Company is not subject to Section 13 or 15(d) of the Exchange Act and is not exempt from reporting pursuant to Rule 12g3-2(b) under the Exchange Act, the Company will promptly furnish or cause to be furnished, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter CSFBL designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedOffered Securities by the Purchasers, however, provided that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposestate.
(ixd) For a During the period from the date of this Agreement until the retirement of the Notes, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as in which any of the Notes are Offered Securities or Exchange Securities remain outstanding, the Company will furnish to you CSFBL and, upon request, to each of the other Purchasers, as soon as practicablepracticable after the end of each fiscal year, (A) all documents distributed, or caused a copy of its annual report to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by shareholders for such year; and the Company will furnish to CSFBL and, upon request, to each of the other Purchasers (i) as soon as available, a copy of each report or financial statement furnished to or filed with the Commission pursuant to the Exchange Act, or any order securities exchange on which any class of securities of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission Company is listed, and (Cii) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you CSFBL may reasonably request.
(ae) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for will, upon request, furnish to any holder of Offered Securities a copy of all legends contained in the related Prefunded Contracts to be marked to show Restricted Global Securities (as defined in the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale Indenture) that describe restrictions on transfer applicable to the Company Offered Securities.
(f) During the period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and two years after the related Prefunding Closing Date, the Company shall will not, and shall instruct will not permit any of its affiliates (as defined in Rule 144 under the Servicer not Securities Act) to, take resell any action inconsistent of the Offered Securities that have been reacquired by any of them.
(g) During the period of two years after the Closing Date, the Company will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(h) The Company will pay all expenses (together with VAT where applicable) incidental to the Trust's ownership performance of such Prefunded Contractsits obligations under this Agreement, other than as permitted by the Indenture and the Trust Registration Rights Agreement, including (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Securities, the preparation of this Agreement, the Registration Rights Agreement, the Offered Securities, the Indenture, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and as applicable, the Exchange Securities; (iii) the cost of listing the Offered Securities and any expenses incidental thereto; (iv) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities; (v) for any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities or the Exchange Securities for sale under the laws of such jurisdictions in the United States and Canada as CSFBL designates and the printing of memoranda relating thereto; (vi) for any fees charged by investment rating agencies for the rating of the Offered Securities or the Exchange Securities (including fees and disbursements of counsel), and (vii) for expenses incurred in distributing copies of the Offering Document (including any amendments and supplements thereto) to the Purchasers. The Company will also pay or reimburse the Purchasers (to the extent incurred by them) for all travel expenses of the Purchasers and the Company's officers and employees and any other expenses of the Purchasers and the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities from the Purchasers.
(xiii) In connection with the offering, until CSFBL shall have notified the Company and the other Purchasers of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities, and neither it 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 Offered Securities.
(j) For a period of 180 days after the date of the initial offering of the Offered Securities by the Purchasers, and except as the Company is obligated in connection with the Exchange Offer, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Securities Act relating to, any debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue, or publicly disclose the intention to make any offer, sale, pledge, disposition or filing, without the prior written consent of Credit Suisse First Boston (Europe) Limited (which consent shall not be unreasonably withheld). The Company will not at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the offer and sale of the Offered Securities.
(k) The Company will file with indemnify and hold harmless the Commission as part of a current report Purchasers against any documentary, stamp or similar issuance tax, including any interest and penalties, on Form 8-K each ABS Term Sheet provided to the Company by each creation, issuance and sale of the Underwriters Offered Securities and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each execution and delivery of the Underwriters must comply with their obligations pursuant this Agreement. All payments to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed be made by the Company hereunder shall be made without withholding or deduction for or on account of any present or future taxes, duties or governmental charges whatsoever unless the Company is compelled by law to be materialdeduct or withhold such taxes, duties or charges. The In that event, the Company shall file any corrected ABS Term Sheets described pay such additional amounts as may be necessary in Section 4(vi) as soon as practicable following receipt thereoforder that the net amounts received after such withholding or deduction shall equal the amounts that would have been received if no withholding or deduction had been made.
(xiiil) The Company will cause Xxxxxxx Xxxxx LLP use its best efforts to deliver have the Offered Securities admitted to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP trading on the Closing Date with respect to the Funded ContractsLuxembourg Stock Exchange.
(xivm) The Company has not issued and will deliver not issue, without the prior consent of the Purchasers, any press or other public announcement referring to the Underwriters Offered Securities unless the announcement adequately discloses the fact that stabilizing action may take place in relation to the Offered Securities.
(in) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) The Company has been informed of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) existence of the Servicing Agreementinformation guidance in relation to stabilization published by the U.K. Financial Services Authority ("FSA") contained in section MAR 2 Xxx 2G of the FSA Handbook.
Appears in 1 contract
Samples: Purchase Agreement (Enodis PLC)
Certain Agreements of the Company. The Company Each of the Issuers, jointly and severally, agrees with the Underwriters several Initial Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative Bear Xxxxxxx promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the Representative's Bear Xxxxxxx' consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actresale of the Offered Securities by the Initial Purchasers, any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify Bear Xxxxxxx of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission or an effect such compliance. Upon receipt of such notice in written form, each Initial Purchaser agrees to suspend use of the Offering Document until the Company has amended or supplemented the Offering Document to correct such misstatement or omission or to effect compliance with this paragraph (a). Neither Bear Xxxxxxx' consent to, nor the Initial Purchasers' delivery to offerees or investors of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 6. The Company's and the Initial Purchasers' obligations under this paragraph (a) shall terminate on the earliest to occur of (i) expiration of the Exchange Offer (as defined in the Registration Rights Agreement) pursuant to the Registration Rights Agreement, (ii) the effective date of a shelf registration statement with respect to the Offered Securities filed pursuant to the Registration Rights Agreement, (iii) the date upon which will effect such complianceno Initial Purchaser nor any of their respective affiliates continues to hold Offered Securities acquired as part of their initial distribution, and (iv) the date upon which no Initial Purchaser nor any of their respective affiliates continues to hold Exchange Notes, if any.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter the Initial Purchasers copies of the Registration Statementany preliminary offering circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as the Initial Purchasers request, and the Company will furnish to Bear Xxxxxxx on the date hereof three copies of the Offering Document signed by a duly authorized officer of the Company, one of which will include the independent accountants' reports therein manually signed by such independent accountants. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to each Underwriter may reasonably requestInitial Purchaser and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Initial Purchasers all such documents.
(viiic) The Company will advise the Initial Purchasers promptly and, if requested by the Initial Purchasers, 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 Offered Securities 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 Issuers shall use their best efforts to prevent the issuance of any stop order suspending the qualification or exemption of any of the Offered Securities 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 Offered Securities under any state securities or Blue Sky laws, the Issuers shall use their best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(d) The Company will cooperate with each Underwriter the Initial Purchasers and their counsel in arranging for connection with the registration and qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as each Underwriter Bear Xxxxxxx designates and will do all things necessary to continue such qualifications in effect so long as required for the distribution resale of the Notes; providedOffered Securities by the Initial Purchasers, however, provided that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposejurisdiction.
(ixe) For a During the period from the date of this Agreement until the retirement of the Notesfive years hereafter, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreementeach Initial Purchaser, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such statements year; and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you each Initial Purchaser (i) as soon as practicableavailable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by a copy of each report and any definitive proxy statement of the Company filed with the Commission pursuant under the Exchange Act or mailed to holders of Offered Securities or any securities of the Company which have been registered under Section 12 of the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (Cii) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you such Initial Purchaser may reasonably request.
(af) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for will, upon request, furnish to the related Prefunded Contracts to be marked to show the Trust's absolute ownership Initial Purchasers and any holder of Offered Securities a copy of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Offered Securities.
(g) During the period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and two years after the related Prefunding Closing Date, the Company shall will not, and shall instruct will not permit any of its affiliates (as defined in Rule 144 under the Servicer not Securities Act) to, resell any of the Offered Securities that have been reacquired by any of them.
(h) During the period of two years after the Closing Date, each of the Issuers will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(i) The Company will pay all expenses incidental to the performance of the Issuers' obligations under this Agreement, the Indenture, the Registration Rights Agreement and the other Transaction Documents, including (i) the fees and expenses of counsel and accountant for the Issuers and of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Notes, the preparation and printing of this Agreement, the Registration Rights Agreement, the Offered Securities, the Exchange Notes, the Indenture, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and as applicable, the Exchange Notes; (iii) the cost of listing the Offered Securities and qualifying the Offered Securities for trading in The Portal/SM/ Market ("PORTAL") and any expenses incidental thereto; (iv) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities; (v) for any expenses (including fees and disbursements of counsel to the Initial Purchasers) incurred in connection with qualification of the Offered Securities or the Exchange Notes for sale under the laws of such jurisdictions as Bear Xxxxxxx designates and the printing of memoranda relating thereto; (vi) for any fees charged by investment rating agencies for the rating of the Offered Securities or the Exchange Notes, and (vii) for expenses incurred in printing and distributing preliminary offering circulars and the Offering Document (including any amendments and supplements thereto) to or at the direction of the Initial Purchasers. The Company will also pay or reimburse the Initial Purchasers (to the extent incurred by them) for all reasonable travel expenses of the Initial Purchasers and the Company's officers and employees and any other expenses of the Initial Purchasers and the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities from the Initial Purchasers.
(j) In connection with the offering, until Bear Xxxxxxx shall have notified the Company and the other Initial Purchaser of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it 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 Offered Securities.
(k) For a period of 180 days after the date of the initial offering of the Offered Securities by the Initial Purchasers, none of the Issuers will offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any United States dollar denominated debt securities issued or guaranteed by any of the Issuers and having a maturity of more than one year from the date of issue. None of the Issuers will at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act, the safe harbor of Regulation S thereunder or the resale exemption under Rule 144A thereunder to cease to be applicable to the offer and sale of the Offered Securities.
(l) The Company will use the proceeds from the sale of the Offered Securities in the manner described in the Offering Document under the caption "Use of Proceeds."
(m) None of the Issuers will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would be integrated with the sale of the Offered Securities in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers of the Offered Securities or to take any other action inconsistent with that would result in the Trust's ownership resale of such Prefunded Contractsthe Offered Securities not being exempt from registration under the Securities Act.
(n) None of the Issuers will take, other than 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 any security of any of the Issuers to facilitate the resale of the Offered Securities. Except as permitted by the Indenture and the Trust Agreement.
(xii) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each Securities Act, none of the Underwriters and identified by each of them as such Issuers will distribute any (i) no later than preliminary offering memorandum or offering memorandum, including without limitation, the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) Offering Document or (ii) no later than two days following their date of first use other offering material in connection with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each offering and sale of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereofOffered Securities.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Microclock Inc)
Certain Agreements of the Company. The Company agrees with the Underwriters Purchaser that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative Purchaser promptly in writing of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect any such amendment or supplement without supplementation to which the RepresentativePurchaser has reasonably objected in writing; provided, however, that the foregoing shall not apply to any of the Company's consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly of any request by periodic filings with the Commission for any amendment of or supplement pursuant to the Registration Statement or the Prospectus or for any additional information Sections 13(a), 13(c), 14 and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and 15(d) of the issuance by Exchange Act if filed after the Commission of any stop order suspending the effectiveness completion of the Registration Statement or resale of the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) Offered Securities. If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Act, resale of the Offered Securities by the Purchaser any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify the Purchaser of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) will promptly prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither the Purchaser's consent to, nor the Purchaser's delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6 hereof.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter the Purchaser copies of the Registration Statement, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as each Underwriter may the Purchaser reasonably requestrequests, and the Company will furnish to the Purchaser on the date hereof three copies of the Offering Document signed by a duly authorized officer of the Company. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to the Purchaser and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchaser all such documents.
(viiic) The Company will cooperate use its best efforts, in cooperation with each Underwriter in arranging for the qualification of Purchaser, to qualify the Notes Offered Securities for sale and the determination of to determine their eligibility for investment under the laws of such jurisdictions as each Underwriter the Purchaser designates and will continue such qualifications in effect so long as required for the distribution resale of the NotesOffered Securities by the Purchaser; provided, however, that the Company shall will not be obligated required to qualify as a foreign corporation or to do file a general consent to service of process in any such jurisdiction or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not currently so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now otherwise so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purpose.
(ixd) For a During the period from of five years after the date of this Agreement until the retirement of the NotesAgreement, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, Purchaser as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such statements year; and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you the Purchaser (i) as soon as practicableavailable, (A) all documents distributeda copy of each report and any definitive proxy statement of the Company filed with the Commission under the Exchange Act or mailed to stockholders, provided that, any such report or caused proxy statement shall be deemed to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, furnished when posted electronically on a website designated by the Company with to which the Commission pursuant to the Exchange ActPurchaser has access, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (Cii) from time to time, such other information in concerning the possession Company as the Purchaser may reasonably request, subject to appropriate confidentiality undertakings reasonably satisfactory to the Company and the right of the Company concerning the Trust and any other to withhold information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably requestif required by applicable law.
(ae) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for will, upon request, furnish to the related Prefunded Contracts to be marked to show the Trust's absolute ownership Purchaser and any holder of Offered Securities a copy of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Offered Securities.
(f) During the period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and two years after the related Prefunding Closing Date, the Company shall will not, and shall instruct will not permit any of its affiliates (as defined in Rule 144 under the Servicer not Securities Act) to, take resell any action inconsistent with of the Trust's ownership Offered Securities that have been reacquired by any of such Prefunded Contractsthem.
(g) During the period of two years after the Closing Date, other than as permitted by the Company will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(h) The Company will pay all expenses incidental to the performance of its obligations under this Agreement, the Indenture and the Trust Registration Rights Agreement, including (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities, and, as applicable, the Exchange Securities (as defined in the Registration Rights Agreement), the preparation and printing of this Agreement, the Registration Rights Agreement, the Offered Securities, the Indenture, the Preliminary Offering Circular, the Offering Document and any amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and, as applicable, the Exchange Securities (other than, in each case, the professional fees and expenses of counsel to the Purchaser except as provided below); (iii) any filing fees or other expenses (including fees and disbursements of counsel to the Purchaser, which fees and disbursements shall not exceed $5,000) incurred in connection with qualification of the Offered Securities for sale and determination of their eligibility for investment under the laws of such jurisdictions as the Purchaser designates and the printing of memoranda relating thereto; (iv) any fees charged by investment rating agencies for the rating of the Offered Securities, (v) any expenses incurred in distributing the Preliminary Offering Circular and the Offering Document (including any amendments and supplements thereto) to the Purchaser, (vi) any travel expenses of the Purchaser and the Company's officers and employees, and any other expenses of the Purchaser and the Company in connection with attending or hosting meetings with prospective purchasers of Offered Securities, including without limitation, any expenses relating to the chartering of private aircraft, and (vii) the professional fees and expenses of counsel to the Purchaser in connection with the consummation of the transactions contemplated in the Exchange Agreement dated as of September 26, 2002 between the Company and the Credit Suisse First Boston Corporation, in an amount not to exceed $65,000.
(xiii) In connection with the offering, until the Purchaser shall have notified the Company of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it 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 Offered Securities.
(j) The Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided registration statement under the Securities Act relating to the Company by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) debt securities issued or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed guaranteed by the Company and having a maturity of more than one year from the date of issue or publicly disclose the intention to be materialmake any such offer, sale, pledge, contract or disposition or filing, without the prior written consent of the Purchaser for a period beginning on the date of this Agreement and ending on the Closing Date. The Company shall file will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any corrected ABS Term Sheets described in securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j4(2) of the Servicing Agreement, addressed Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the Underwriters, with respect to the transfer offer and sale of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsOffered Securities.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Teco Energy Inc)
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the Representative's ’s consent, which consent will shall not be unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Act, resale of the Offered Securities by the Purchasers any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include (as of its date or the last date of its amendment or supplementation, whichever is later) an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify the Representative of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither the Representative’s consent to, nor the Purchasers’ delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter the Representative copies of the Registration Statementany Preliminary Offering Circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as the Representative may from time to time request, and the Company will furnish to the Representative on the Closing Date three copies of the Offering Document signed by a duly authorized officer of the Company, one of which will include the independent accountants’ reports therein manually signed by such independent accountants. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, for so long as any Offered Securities are outstanding, the Company will promptly furnish or cause to be furnished to the Representative (and, upon request, to each Underwriter may reasonably requestof the other Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging promptly from time to time take such action as any Purchaser may reasonably request to arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter any Purchaser designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; provided, however, Offered Securities by the Purchasers provided that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension such state or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposeprovince.
(ixd) For a During the period from the date of this Agreement until the retirement of the Notesfive years hereafter, the Company will furnish to the Underwriters copies Representative and, upon request, to each of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreementother Purchasers, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such statements year; and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you the Representative and, upon request, to each of the other Purchasers (i) as soon as practicableavailable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by a copy of each report and any definitive proxy statement of the Company filed with the Commission pursuant to under the Exchange ActAct or mailed to stockholders, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (Cii) from time to time, such other information in the possession of the Company concerning the Trust and any other public information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you the Representative may reasonably request.
(a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xii) The Company will file with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to any such filing of an ABS Term Sheet (other than any ABS Term Sheets document filed with the Commission that are not based is publicly available in electronic form on the Contract Pool information) Commission’s EXXXX System shall not be provided unless requested by the CompanyRepresentative or any Purchaser, as applicable.
(e) During the period of two years after the Closing Date, the Company will, upon request, furnish to the Representative, each of the Underwriters must comply with their obligations pursuant to Section 4 other Purchasers and any holder of Offered Securities a copy of the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance restrictions on transfer applicable to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereofSecurities.
(xiiif) During the period of two years after the Closing Date, the Company will not, and will not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Offered Securities that have been reacquired by any of them.
(g) During the period of two years after the Closing Date, neither the Company nor Holdings will be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(h) The Company will cause Xxxxxxx Xxxxx LLP to deliver pay all expenses incidental to the Underwriters on or before performance of its obligations under the Prefunding Closing DateOperative Documents including (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the opinions required Exchange Securities, the preparation and printing of this Agreement, the Registration Rights Agreement, the Offered Securities, the Indenture, the Offering Document and amendments and supplements thereto, and any other document relating to be furnished pursuant the issuance, offer, sale and delivery of the Offered Securities and, as applicable, the Exchange Securities; (iii) the cost of qualifying the Offered Securities for trading in The PortalSM Market (“PORTAL”) of The Nasdaq Stock Market, Inc. and any expenses incidental thereto; (iv) expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities or the Exchange Securities for sale under the laws of such jurisdictions in the United States and Canada as any Purchaser designates and the printing of memoranda relating thereto; (v) any fees charged by investment rating agencies for the rating of the Offered Securities or the Exchange Securities; and (vi) expenses incurred in distributing the Preliminary Offering Circular and the Offering Document (including any amendments and supplements thereto) to the Purchasers. The Purchasers will pay for all travel expenses of the Company’s officers and employees and any other expenses of the Company in connection with attending meetings with prospective purchasers of the Offered Securities, including the cost of an airplane for such travel. It is understood that, except as provided in this Section 2.01(jand in Sections 7 and 9 hereof, the Purchasers will pay for all travel expenses of the Purchasers’ employees and any other out-of-pocket expenses of the Purchasers in connection with attending or hosting meetings with prospective purchasers of the Offered Securities, the fees of their counsel, transfer taxes on the resale of any of the Offered Securities by them and any advertising expenses connected with any offers they make.
(i) In connection with the Offering, until the Representative shall have notified the Company and the other Purchasers of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it 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 Offered Securities.
(j) For a period of 90 days after the date of the initial offering of the Offered Securities by the Purchasers, the Company will not offer, sell, contract to sell, pledge, or otherwise dispose of, directly or indirectly, any United States dollar-denominated debt securities that are substantially similar to the Offered Securities and are issued or guaranteed by the Company or guaranteed by Holdings, and having a maturity of more than one year from the date of issue, without the prior written consent of the Representative. The Company will not at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(2) of the Servicing Agreement, addressed Securities Act to cease to be applicable to the Underwriters, with respect to the transfer offer and sale of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsSecurities.
(xivk) The Company will deliver use its best efforts to effect the inclusion of the Offered Securities in PORTAL and to maintain the listing of the Offered Securities on PORTAL for so long as the Offered Securities (not including the Exchange Securities) are outstanding.
(l) The Company will obtain the approval of DTC for “book-entry” transfer of the Offered Securities, and will comply with all of its agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the Underwriters approval of the Offered Securities by DTC for “book-entry” transfer.
(im) on The Company will not sell, offer for sale or before each Prefunding Closing Datesolicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would be integrated with the sale of the Offered Securities to the Purchasers or pursuant to exempt resales of the Offered Securities in a manner that would require the registration of any such sale of the Offered Securities under the Securities Act.
(n) The Company will not voluntarily claim, and will actively resist any attempts to claim, the Officer's Certificate benefit of any usury laws against the holders of any Notes and certificate from each secured creditor the related Guaranties.
(o) The Company will cause, as required by the Registration Rights Agreement, and subject to the terms, conditions and limitations thereof, the Registered Exchange Offer to be furnished made in the appropriate form to permit Exchange Securities and guarantees thereof by the Guarantors registered pursuant to Section 2.01(jthe Securities Act to be offered in exchange for the Offered Securities and to comply with all applicable federal and state securities laws in connection with the Registered Exchange Offer.
(p) The Company will comply with all of its agreements set forth in the Registration Rights Agreement; provided, however, that the sole monetary damages for breach of this obligation and the obligations set forth in the preceding paragraph shall be the liquidated damages provided for by the Registration Rights Agreement.
(q) The Company will use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Servicing Agreement Offered Securities.
(r) Subject to the consummation of the Offering and (ii) on or before each Prefunding Transfer Datethe Senior Subordinated Notes Offering, the Transfer Certificate required Company shall consummate the 9% Redemption during the first redemption period for the 9% Notes in accordance with the indenture relating to be furnished pursuant to Section 2.01(csuch notes.
(s) The Company will not extend, cancel or in any way change the terms of the Servicing AgreementTender Offer without the consent of the Representative and shall purchase all 10¾% Notes validly tendered in the Tender Offer.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the Underwriters several Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative CSFB promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Document and will not effect such amendment or supplement supplementation without the RepresentativeCSFB's consent, which consent will shall not be unreasonably be withheldwithheld or delayed. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Act, resale of the Offered Securities by the Purchasers any event occurs as a result of which the Prospectus Offering Document as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify CSFB of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither the Purchasers' consent to, nor the Purchasers' delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viib) The Company will furnish to each Underwriter CSFB copies of the Registration Statementany preliminary offering circular, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as each Underwriter may reasonably CSFB requests, and the Company will furnish to CSFB on the date hereof three copies of the Offering Document signed by a duly authorized officer of the Company. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to CSFB (and, upon request, to the other Purchaser) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(viiic) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions states in the United States as each Underwriter CSFB designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; provided, however, Offered Securities by the Purchasers provided that the Company shall will not be obligated required to qualify to do business in any jurisdiction in which it is not currently so qualified as a foreign corporation or to take any action which would subject it file a general consent to general or unlimited service of process or subject itself to taxation in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposestate.
(ixd) For a During the period from of two years after the date of this Agreement until the retirement later of the Notes, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, First Closing Date and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably request.
(a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding last Optional Closing Date, the Company shall cause its computer records for will, upon request, furnish to CSFB, the related Prefunded Contracts to be marked to show the Trust's absolute ownership other Purchaser and any holder of Offered Securities a copy of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Offered Securities.
(e) During the period of two years after the later of the related Prefunded Contracts First Closing Date and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding last Optional Closing Date, the Company shall will not, and shall instruct will not permit any of its affiliates (as defined in Rule 144 under the Servicer not Securities Act) to, take resell any action inconsistent with of the Trust's ownership Offered Securities that have been reacquired by any of such Prefunded Contractsthem.
(f) During the period of two years after the later of the First Closing Date and the last Optional Closing Date, other than as permitted by the Company will not be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(g) The Company will pay all expenses incidental to the performance of its obligations under this Agreement, the Indenture and the Trust Registration Rights Agreement including (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities, the preparation and printing of this Agreement, the Registration Rights Agreement, the Offered Securities, the Indenture, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities; (iii) the cost of qualifying the Offered Securities for trading in The PortalSM Market ("PORTAL") of The Nasdaq Stock Market, Inc. and any expenses incidental thereto, (iv) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities, (v) any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities for sale under the laws of such jurisdictions as CSFB designates and the printing of memoranda relating thereto, and (vi) expenses incurred in distributing preliminary offering circulars and the Offering Document (including any amendments and supplements thereto) to the Purchasers. The Company will reimburse the Purchasers for all travel expenses of the Purchasers and the Company's officers and employees and any other expenses of the Purchasers and the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities.
(xiih) In connection with the offering, until CSFB shall have notified the Company and the other Purchasers of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates has or will, 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 any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it 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 Offered Securities.
(i) For a period of 90 days after the date of the initial offering of the Offered Securities by the Purchasers, the Company will not offer, sell, contract to sell, pledge, or otherwise dispose of, directly or indirectly, any shares of Common Stock of the Company or warrants or other rights to purchase shares of Common Stock of the Company, without the prior written consent of CSFB, or publicly disclose the intention to make any such offer, sale, pledge or disposition; provided that such restriction shall not apply to: (i) the Offered Securities, (ii) the filing of the shelf registration statement covering resales of the Offered Securities and any Underlying Shares issued upon conversion thereof pursuant to a shelf registration statement, (iii) the conversion or exchange of convertible or exchangeable securities or the exercise of warrants or options, in each case outstanding on the date hereof, (iv) grants of employee stock options pursuant to the terms of a plan in effect on the date hereof , (v) issuances of Common Stock pursuant to the exercise of such options or (vi) distributions of Common Stock in satisfaction of the Company's obligations under its deferred compensation plan. The Company will file with not at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company exemption afforded by each of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j4(2) of the Servicing Agreement, addressed Securities Act to cease to be applicable to the Underwriters, with respect to the transfer offer and sale of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsOffered Securities.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the Underwriters Initial Purchaser that:
(ia) Immediately During the period described in the following the execution sentence of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b4(a), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iii) The Company will shall advise the Representative Initial Purchaser promptly of any proposal to amend or supplement the Registration Statement as Final Memorandum (except by documents filed or under the Prospectus, Exchange Act) and will not effect such amendment or supplement (except by documents filed under the Exchange Act) without the RepresentativeInitial Purchaser's consent, which consent will not be unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the completion of the resale of the Offered Notes is required to be delivered under by the ActInitial Purchaser, any event occurs shall occur as a result of which it is necessary to amend or supplement the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary Final Memorandum in order to make the statements therein, in the light of the circumstances under which they were madewhen the Final Memorandum is delivered to a purchaser, not misleading, or if it is necessary at misleading in any time to amend the Prospectus to comply with the Actmaterial respect, the Company promptly will shall prepare and file with the Commission (subject furnish to the RepresentativeInitial Purchaser, at the Company's prior review pursuant own expense, either amendments or supplements to paragraph the Final Memorandum so that the statements in the Final Memorandum as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, be misleading in any material respect. Neither the Initial Purchaser's consent to, nor the Initial Purchaser's delivery to offerees or investors of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 3 hereof.
(b) Notwithstanding any provision of Section 4(a) hereof to the contrary, the Company's obligations under Section 4(a) hereof shall terminate on the earlier to occur of (i) the effective date of the Exchange Offer Registration Statement or Shelf Registration Statement and (ii) the date upon which the Initial Purchaser and the Initial Purchaser's affiliates cease to hold Offered Notes acquired as part of this Section 5) an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliancethe Initial Purchaser's initial distributions.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viic) The Company will furnish to each Underwriter the Initial Purchaser copies of the Registration StatementPreliminary Memorandum, the Prospectus and any preliminary Prospectus Supplement related thereto Final Memorandum and all amendments and supplements to such documentsdocuments (excluding all documents incorporated by reference therein), in each case as soon as available and in such quantities as each Underwriter may the Initial Purchaser reasonably requestrequests. So long as any of the Offered Notes are "Registrable Securities" (as defined in the Registration Rights Agreement), at any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will provide to any holder of such Registrable Securities, or to any prospective purchaser of such Registrable Securities designated by a holder, upon the request of such holder or prospective purchaser, any information required to be delivered to holders and prospective purchasers of the Offered Notes pursuant to Rule 144A(d)(4) under the Securities Act. This covenant is intended to be for the benefit of the holders, and prospective purchasers designated by such holders from time to time, of such Registrable Securities.
(viiid) If requested by the Initial Purchaser, the Company shall use its reasonable efforts to permit the Offered Notes to be designated PORTAL securities in accordance with the rules and regulations adopted by the NASD relating to trading in the PORTAL Market.
(e) The Company will cooperate shall, in cooperation with each Underwriter in arranging the Initial Purchaser, endeavor to arrange for the qualification of the Offered Notes for offer and sale and the determination of their eligibility for investment under the applicable securities or "blue sky" laws of such jurisdictions in the United States as each Underwriter the Initial Purchaser reasonably designates and will continue endeavor to maintain such qualifications in effect so long as required for the distribution resale of the NotesOffered Notes by the Initial Purchaser; provided, however, PROVIDED that the Company shall not be obligated required to (i) qualify as a foreign corporation or as a dealer in securities, (ii) file a general consent to do business in any jurisdiction in which it is not currently so qualified or to take any action which would subject it to general or unlimited service of process or (iii) subject itself to taxation in any jurisdiction where it is not now so subject. The such jurisdiction.
(f) During the period of ten years after the Closing Date, the Company will promptly advise furnish to the Underwriters Initial Purchaser, upon request, copies of all Annual Reports on Form 10-K and any definitive proxy statement of the receipt by Company filed with the Company of Commission; PROVIDED that providing a website address at which such Annual Reports and any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposedefinitive proxy statements may be accessed will satisfy this clause (f).
(ixg) For a period from Between the date of this Agreement until the retirement of the Notes, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will furnish to you as soon as practicable, (A) all documents distributed, or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission pursuant to the Exchange Act, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (C) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably request.
(a) On or before the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, without the prior written consent of the Initial Purchaser, offer, sell, or enter into any agreement to sell (as public debt securities registered under the Securities Act or as debt securities which may be resold in a transaction exempt from the registration requirements of the Securities Act in reliance on Rule 144A thereunder (other than the Offered Notes) and shall instruct which are marketed through the Servicer use of a disclosure document containing substantially the same information as a prospectus for similar debt securities registered under the Securities Act), any notes of the Company secured by Spare Parts or Appliances (or rights relating thereto).
(h) During the period of two years after the Closing Date, the Company will, upon request, furnish to the Initial Purchaser and any holder of Offered Notes or Exchange Notes, as the case may be, a copy of the restrictions on transfer applicable to such Offered Notes or Exchange Notes.
(i) During the period of two years after the Closing Date, the Company will not, and will not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, take resell any action inconsistent of the Offered Notes or Exchange Notes that have been reacquired by any of them.
(j) During the period of two years after the Closing Date (or, if shorter, the period beginning on the Closing Date and ending on the date on which there ceases to be any Registrable Securities), the Company will not be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act, or a closed-end investment company required to be registered, but not registered, under the Investment Company Act.
(k) Neither the Company nor any affiliate of the Company will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which would be integrated with the Trust's ownership sale of such Prefunded Contracts, other than as permitted by the Indenture and Offered Notes in a manner which would require the Trust registration under the Securities Act of the Offered Notes sold to the Initial Purchaser pursuant to this Agreement.
(xiil) The Company will file shall not take any action prohibited by Regulation M under the Exchange Act in connection with the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each distribution of the Underwriters and identified by each of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereofOffered Notes contemplated hereby.
(xiii) The Company will cause Xxxxxxx Xxxxx LLP to deliver to the Underwriters on or before the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the Underwriters several Initial Purchasers that:: 4
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative Representatives promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Memorandum and will not effect afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued ordersupplement.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(vb) If, at any time when a Prospectus relating prior to the Notes is required to be delivered under completion of the Actsale of Securities by the Initial Purchasers (as determined by the Representatives), any event occurs as a result of which the Prospectus Offering Memorandum as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus Offering Memorandum to comply with the Actapplicable law, the Company promptly will notify the Representatives of such event and will promptly prepare and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) at its own expense, an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance. Neither the Representatives' consent to, nor the Initial Purchasers' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 7 hereof.
(vi) As soon as practicable, the Company will cause the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(viic) The Company will furnish to each Underwriter the Initial Purchasers copies of the Registration StatementOffering Memorandum, the Prospectus and any preliminary Prospectus Supplement related thereto and including all amendments and supplements to such documentsthereto, in each case as soon as available and in such quantities as each Underwriter may the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Initial Purchasers all such documents.
(viiid) The Company will cooperate with each Underwriter in arranging arrange for the qualification of the Notes Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as each Underwriter designates the Representatives designate and will continue such qualifications in effect so long as required for the distribution of the Notes; provided, however, that the Company shall not be obligated to qualify to do business in any jurisdiction in which it is not currently so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now so subject. distribution.
(e) The Company will promptly advise the Underwriters not, and will not permit any of the receipt its Affiliates to, resell any Securities that have been acquired by the Company any of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposethem.
(ixf) For a period from Neither the date Company, nor any of this Agreement until its Affiliates, nor any person acting on its or their behalf will, directly or indirectly, make offers or sales of any security, or solicit offers to buy any security, under circumstances that would require the retirement registration of the Notes, Securities under the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectivelyAct.
(xg) Neither the Company, nor any of its Affiliates, nor any person acting on its or their behalf will engage in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with any offer or sale of the Securities in the United States.
(h) So long as any of the Notes Securities are outstanding"restricted securities" within the meaning of Rule 144(a)(3) under the Act, the Company will furnish will, during any period in which it is not subject to you as soon as practicable, (Aand in compliance with Section 13 or 15(d) all documents distributed, of the Exchange Act or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, by the Company with the Commission it is not exempt from such reporting requirements pursuant to and in compliance with Rule 12g3-2(b) under the Exchange Act, provide to each holder of such restricted securities and to each prospective purchaser (as designated by such holder) of such restricted securities, upon the request of such holder or prospective purchaser, any order information required to be provided by Rule 144A(d)(4) under the Act. This covenant is intended to be for the benefit of the Commission thereunder or pursuant to a "no-action" letter from holders, and the staff of the Commission and (C) prospective purchasers designated by such holders, from time to time, time of such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you may reasonably requestrestricted securities.
(ai) On Neither the Company, nor any of its Affiliates, nor any person acting on its or before the Closing Date the Company shall cause its computer records relating their behalf will engage in any directed selling efforts with respect to the Funded Contracts to be marked to show the Trust's absolute ownership of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the TrustSecurities, and from and after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent each of them will comply with the Trust's ownership offering restrictions requirement of such Funded Contracts, other than as permitted Regulation S. Terms used in this paragraph have the meanings given to them by the Indenture and the Trust Agreement.Regulation S.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts to be marked to show the Trust's absolute ownership of the related Prefunded Contracts and shall cause the Servicer to mark its computer records for the related Prefunded Contracts to show the sale to the Company of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and after the related Prefunding Closing Date, the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(xiij) The Company will file with not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Commission as part of a current report on Form 8-K each ABS Term Sheet provided to the Company by each Exchange Act or 5 otherwise, in stabilization or manipulation of the Underwriters and identified by each price of them as such (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or (ii) no later than two days following their date any security of first use with respect to "collateral term sheets" (as such term is interpreted in the No-Action Letters); provided, however, that prior to such filing of an ABS Term Sheet (other than any ABS Term Sheets that are not based on the Contract Pool information) by the Company, each of the Underwriters must comply with their obligations pursuant to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance to the Company, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereoffacilitate the sale or resale of the Securities.
(xiiik) The Company will cause Xxxxxxx Xxxxx LLP to deliver pay all expenses incident to the Underwriters on or before performance of its obligations under the Prefunding Closing DatePurchase Agreement (including the provisions of this Agreement), the opinions required to be furnished pursuant to Section 2.01(j) preparation, printing and reproduction of the Servicing AgreementOffering Memorandum and each amendment or supplement thereto, addressed the issuance of the Securities and the fees of the Trustee, for any filing fees or other expenses (including fees and disbursements of counsel) in connection with qualification of the Securities for sale or any determination of their eligibility for investment under the laws of such jurisdictions as the Representatives may designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities, for any travel expenses of the Company's officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of Securities and for expenses incurred in distributing the Offering Memorandum or any amendments or supplements to the Underwriters, with respect Offering Memorandum to the transfer of the related Prefunded Contracts substantially in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsInitial Purchasers.
(xiv) The Company will deliver to the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Scholastic Corp)
Certain Agreements of the Company. The Company agrees with the Underwriters several Initial Purchasers that:
(i) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement setting forth the amount of Notes covered thereby and the terms thereof not otherwise specified in the Base Prospectus, the price at which such Notes are to be purchased by the Underwriters, the initial public offering price, the selling concessions and allowances, and such other information as the Company deems appropriate and shall furnish a copy to the Representative in accordance with Section 5(vii) of this Agreement. The Company will transmit the Prospectus including such Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means reasonably calculated to result in filing that complies with all applicable provisions of Rule 424(b). The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment or supplement without the Representative's consent, which consent will not unreasonably be withheld. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, and any supplement thereto, with the Commission pursuant to and in accordance with the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing.
(iiia) The Company will advise the Representative CSFBC promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus, Offering Circular and will not effect such amendment or supplement without the RepresentativeCSFBC's consent, which consent will shall not be unreasonably be withheld. The Company will also advise the Representative promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and the Company will also advise the Representative promptly of any amendment or supplement to the Registration Statement or the Prospectus and of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose, and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the Registration Statement, and any amendment thereto, if not effective at the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating prior to the completion of the resale of the Notes is required to be delivered under by the ActInitial Purchasers, any event occurs as a result of which the Prospectus Offering Circular as then amended or supplemented would include an 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify CSFBC of such event and file with the Commission (subject to the Representative's prior review pursuant to paragraph (ii) of this Section 5) promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission omission. Neither CSFBC's consent to, nor the Initial Purchasers' delivery to offerees or an investors of, any such amendment or supplement which will effect such complianceshall constitute a waiver of any of the conditions set forth in Section 6.
(vib) As The Company will prepare and print the Offering Circular as soon as practicablepracticable after the execution and delivery of this Agreement; provided that the Offering Circular shall be in the form of the July 31, 2001 draft thereof sent to, and accepted by, the Company will cause Initial Purchasers, with such changes and additions thereto as are reasonably requested by, or otherwise reasonably satisfactory in all material respects to, the Trust to make generally available to the Noteholders and the holders of the Residual Interest Instruments of the Trust an earnings statement or statements of the Trust covering a period of at least 12 months beginning after the Closing Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the Commission promulgated thereunder.
(vii) Initial Purchasers. The Company will furnish to each Underwriter CSFBC copies of the Registration Statement, the Prospectus and any preliminary Prospectus Supplement related thereto Offering Circular and all amendments and supplements to such documentsthereto, in each case as soon as available and in such quantities as CSFBC reasonably requests, and the Company will furnish to CSFBC, as soon as the Offering Circular is available, three copies thereof signed by a duly authorized officer of the Company, one of which will include the independent accountants' reports therein manually signed by such independent accountants. For so long as the Notes are outstanding and are restricted securities within the meaning of Rule 144(a)(3) under the Securities Act and at any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to CSFBC (and, upon request, to each Underwriter may reasonably requestof the other Initial Purchasers) and, upon request of holders and prospective purchasers of the Notes, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Notes pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Notes. The Company will pay the expenses of printing and distributing to the Initial Purchasers all such documents.
(viiic) The Company Company, in cooperation with the Initial Purchasers, will cooperate with each Underwriter in arranging arrange for the qualification of the Notes for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as each Underwriter CSFBC reasonably designates and will continue such qualifications in effect so long as required for the distribution resale of the Notes; providedNotes by the Initial Purchasers, however, provided that the Company shall will not be obligated required to qualify to do business as a foreign corporation or as a dealer in any jurisdiction in which it is not currently so qualified securities or to take any action which that would subject it to general or unlimited service of process or taxation in any jurisdiction where it is not now so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension or the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for such purposejurisdiction.
(ixd) For a During the period from of ten years after the date of this Agreement until the retirement of the NotesClosing Date, the Company will furnish to the Underwriters copies of the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the Servicing Agreement, and the annual independent public accountant's reports furnished to the Indenture Trustee pursuant to Section 3.11 of the Servicing Agreement, as soon as practicable after such statements and reports are furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So for so long as any of the Notes are outstanding, the Company will furnish to you the Initial Purchasers, as soon promptly as practicable after the end of each fiscal year, a copy of its annual report to shareholders for such year; and the Company will furnish to CSFBC and, upon request, to each of the other Initial Purchasers (i) as promptly as practicable, (A) all documents distributeda copy of each report, notices or caused to be distributed, by the Servicer to the Noteholders, (B) all documents filed, or caused to be filed, communications sent by the Company to holders of Notes or, if applicable, filed with the Commission pursuant to the Exchange Actforeign regulators or securities exchanges, any order of the Commission thereunder or pursuant to a "no-action" letter from the staff of the Commission and (Cii) from time to time, such other information in the possession of the Company concerning the Trust and any other information concerning the Company filed with any governmental or regulatory authority which is otherwise publicly available as you CSFBC may reasonably request.
(ae) On or before During the Closing Date the Company shall cause its computer records relating to the Funded Contracts to be marked to show the Trust's absolute ownership period of the Funded Contracts and shall cause the Servicer to mark its computer records relating to the Funded Contracts to show the sale to the Company of the Funded Contracts and the subsequent transfer of the Funded Contracts to the Trust, and from and two years after the Closing Date the Company shall not, and shall instruct the Servicer not to, take any action inconsistent with the Trust's ownership of such Funded Contracts, other than as permitted by the Indenture and the Trust Agreement.
(b) On or before the related Prefunding Closing Date, the Company shall cause its computer records for the related Prefunded Contracts will, upon request, furnish to be marked to show the Trust's absolute ownership CSFBC, each of the related Prefunded Contracts other Initial Purchasers and shall cause any holder of Notes a copy of the Servicer to mark its computer records for the related Prefunded Contracts to show the sale restrictions on transfer applicable to the Company Notes.
(f) During the period of the related Prefunded Contracts and the subsequent transfer of the related Prefunded Contracts to the Trust, and two years after the related Prefunding Closing Date, the Company shall will not, and shall instruct will not permit any of its affiliates (as defined in Rule 144 under the Servicer not Securities Act) to, take resell any action inconsistent with of the Trust's ownership Notes that have been reacquired by any of such Prefunded Contracts, other than as permitted by the Indenture and the Trust Agreementthem.
(xiig) During the period of two years after the Closing Date, the Company will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(h) The Company will file pay all expenses in connection with the Commission as part performance of a current report on Form 8-K each ABS Term Sheet provided to its obligations under the Company by each of the Underwriters and identified by each of them as such Operative Agreements, including (i) no later than the date that fees and expenses of the Prospectus Supplement is filed with respect to "computational materials" Trustee and "structural terms sheets" (as such terms are interpreted in the No-Action Letters) or its professional advisers; (ii) no later than two all expenses in connection with the execution, issue, authentication, packaging and delivery of the Notes, the preparation and printing of the Operative Agreements, the Offering Circular and all amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Notes; (iii) the cost of listing the Notes and qualifying the Notes for trading in The Portal(SM) Market ("PORTAL") of ------ The Nasdaq Stock Market, Inc. and any expenses in connection therewith; (iv) the cost of any advertising approved by the Company in connection with the issue of the Notes; (v) any expenses (including reasonable fees and disbursements of counsel) incurred in connection with qualification of the Notes for sale under the laws of such jurisdictions in the United States and Canada as CSFBC reasonably designates and the printing of memoranda relating thereto; (vi) any fees charged by investment rating agencies for the rating of the Securities; and (vii) expenses incurred in distributing Offering Circulars (including any amendments and supplements thereto) to the Initial Purchasers.
(i) In connection with the offering, until CSFBC shall have notified the Company and the other Initial Purchasers of the completion of the resale of the Notes, neither the Company nor any of its affiliates has or will, 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 any Notes or attempt to induce any person to purchase any Notes; and neither it 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.
(j) For a period of 90 days following their after the date of first use with respect the initial offering of the Notes by the Initial Purchasers, the Company will not, and will not permit any Subsidiary to, offer, sell, contract to "collateral term sheets" (as sell, pledge or otherwise dispose of, directly or indirectly, any United States dollar-denominated debt securities issued or guaranteed by the Company or any Subsidiary and having a maturity of more than one year from the date of issue, or publicly disclose the intention to make any such term is interpreted in offer, sale, pledge or disposition, without the No-Action Letters); providedprior written consent of CSFBC. The Company will not at any time offer, howeversell, that prior contract to such filing of an ABS Term Sheet sell, pledge or otherwise dispose of, directly or indirectly, any securities (other than any ABS Term Sheets that are not based on the Contract Pool informationExchange Securities) under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by the Company, each Section 4(2) of the Underwriters must comply with their obligations pursuant Securities Act or the safe harbor of Regulation S thereunder to Section 4 and the Company must receive a letter from Xxxxx Xxxxxxxx LLP, certified public accountants, satisfactory in form and substance cease to be applicable to the Company, to offer and sale of the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company, as a result of which Xxxxx Xxxxxxxx LLP have determined that the information included in such ABS Term Sheet (if any), provided by the Underwriters to the Company for filing on a current report on Form 8-K pursuant to Section 4 and, if the Company then so specifies, this subsection (xii), and that the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Company to be material. The Company shall file any corrected ABS Term Sheets described in Section 4(vi) as soon as practicable following receipt thereofNotes.
(xiiik) The Company will cause Xxxxxxx Xxxxx LLP to deliver to apply the Underwriters on or before net proceeds from the Prefunding Closing Date, the opinions required to be furnished pursuant to Section 2.01(j) sale of the Servicing Agreement, addressed to the Underwriters, with respect to the transfer Notes substantially as set forth under "Use of the related Prefunded Contracts substantially Proceeds" in the form of the opinions delivered by Xxxxxxx Xxxxx LLP on the Closing Date with respect to the Funded ContractsOffering Circular.
(xivl) The Company will deliver cooperate with the Initial Purchasers to effect the Underwriters (i) on or before each Prefunding Closing Date, the Officer's Certificate and certificate from each secured creditor required to be furnished pursuant to Section 2.01(j) inclusion of the Servicing Agreement and (ii) on or before each Prefunding Transfer Date, the Transfer Certificate required to be furnished pursuant to Section 2.01(c) of the Servicing AgreementNotes in PORTAL.
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