Covenants and Agreements of the Company. The Company covenants with the several Underwriters participating in the offering of Underwritten Securities that: (a) Immediately following the execution of the applicable Terms Agreement, the Company will prepare a Prospectus Supplement setting forth the principal amount of Underwritten Securities covered thereby and their terms not otherwise specified in the Prospectus or the Indenture, as the case may be, pursuant to which the Underwritten Securities are being issued, the names of the Underwriters participating in the offering and the principal amount of Underwritten Securities which each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, the price at which the Underwritten Securities are to be purchased by the Underwriters from the Company, the initial public offering price, if any, the selling concession and reallowance, if any, any delayed delivery arrangements, and such other information as you and the Company deem appropriate in connection with the offering of the Underwritten Securities; and the Company will promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations. (b) The Company will advise you promptly of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting thereof, if issued. The Company will advise you promptly of the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus or any document to be filed pursuant to the 1934 Xxx. Xxe Company will advise you promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information. (c) If the Company elects to rely on Rule 434 under the 1933 Act Regulations, the Company will prepare an abbreviated term sheet that complies with the requirements of Rule 434 under the 1933 Act Regulations and the Company will provide the Underwriters with copies of the form of Rule 434 Prospectus, in such number as the Underwriters may reasonably request, and file or transmit for filing with the Commission the form of Prospectus complying with Rule 434(c)(2) of the 1933 Act in accordance with Rule 424(b) of the 1933 Act by the close of business in New York on the business day immediately succeeding the date of the Terms Agreement. (d) At any time when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, the Company will give you notice of its intention to file any amendment to the Registration Statement or any amendment or supplement to the Prospectus, whether pursuant to the 1933 Act, 1934 Act or otherwise, and will furnish you with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing, and will not file any such amendment or supplement or other documents in a form to which you or counsel for the Underwriters shall reasonably object in writing or which is not in material compliance with the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations as applicable. (e) The Company will deliver to each Underwriter a signed copy of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith and documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Xxx) xxd will also deliver to such Underwriter a conformed copy of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference but without exhibits). (f) The Company will furnish to each Underwriter, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations. (g) If at any time after the effective date of the Registration Statement when a prospectus relating to the Underwritten Securities is required to be delivered under the 1933 Act or the 1934 Act any event relating to or affecting the Company occurs as a result of which the Prospectus or any other prospectus as then in effect 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 Registration Statement or the Prospectus to comply with the 1933 Act or the 1934 Act, the Company will promptly notify you thereof and will amend or supplement the Registration Statement or the Prospectus to correct such statement or omission whether by filing documents pursuant to the 1933 Act, the 1934 Act or otherwise as may be necessary to correct such untrue statement or omission or to make the Registration Statement and Prospectus comply with such requirements, and the Company will furnish to the Underwriters a reasonable number of copies of such amendment or supplement. (h) The Company will cooperate with the Underwriters to enable the Underwritten Securities and the Common Shares issuable upon conversion of the Securities, if any, to be qualified for sale under the securities laws and real estate syndication laws of such jurisdictions as you may designate and at the request of the Underwriters will make such applications and furnish such information as may be required of it as the issuer of the Underwritten Securities and the Common Shares issuable upon conversion of the Securities, if any, for that purpose; provided, however, that the Company shall not be required to qualify to do business or to file a general consent to service of process in any such jurisdiction. The Company will, from time to time, prepare and file such statements and reports as are or may be required of it as the issuer of the Underwritten Securities and the Common Shares issuable upon conversion of the Securities, if any, to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for the distribution of the Underwritten Securities; and in each jurisdiction in which the Underwritten Securities and the Common Shares issuable upon conversion of the Securities, if any, have been so qualified, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities and the Common Shares issuable upon conversion of the Securities, if any; provided, however, that the Company shall not be obligated to qualify as a foreign corporation in any jurisdiction where it is not so qualified. (i) With respect to each sale of Underwritten Securities, the Company will make generally available to its security holders as soon as practicable, but in any event no later than 60 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) which will be in reasonable detail (but which need not be audited) and which will comply with Section 11(a) of the 1933 Act covering a period of at least twelve months beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in said Rule 158) of the Registration Statement. (j) The Company will furnish to its shareholders annual reports containing financial statements certified by independent public accountants and with quarterly summary financial information in reasonable detail which may be unaudited. During the period of five years from the date hereof, the Company will deliver to you and, upon request, to each of the other Underwriters, (i) copies of each annual report of the Company and each other report furnished by the Company to its shareholders; and will deliver to you, (ii) as soon as they are available, copies of any other reports (financial or other) which the Company shall publish or otherwise make available to any of its security holders as such, and (iii) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange. In the event the Company has active subsidiaries, such financial statements will be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to its shareholders generally. Separate financial statements shall be furnished for all subsidiaries whose accounts are not consolidated but which at the time are significant subsidiaries as defined in the 1933 Act Regulations. (k) The Company will use the net proceeds received by it from the sale of Underwritten Securities in the manner specified in the Prospectus under "Use of Proceeds." (l) The Company will use its best efforts to continue to meet the requirements to qualify as a "real estate investment trust" under the Code for the taxable year in which sales of the Underwritten Securities are to occur. (m) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, will file promptly all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time periods prescribed by the 1934 Act and the 1934 Act Regulations. [(n) The Company will not, between the date of the applicable Terms Agreement and the termination of any trading restrictions or the Closing Time, whichever is later, with respect to the Underwritten Securities covered thereby, without your prior written consent, offer or sell, grant any option for the sale of, or enter into any agreement to sell, any debt securities of the Company with a maturity of more than one year (other than the Underwritten Securities which are to be sold pursuant to such Terms Agreement), or if such Terms Agreement relates to Senior Securities or Subordinated Securities that are convertible into Common Shares, any Common Shares or any security convertible into Common Shares (except for Common Shares issued pursuant to reservations, agreements, employee benefit plans, dividend reinvestment plans, or employee stock option plans), except as may otherwise be provided in the applicable Terms Agreement.] (o) If applicable, the Company will reserve and keep available at all times, free of preemptive rights or other similar rights, a sufficient number of Common Shares for the purpose of enabling the Company to satisfy any obligations to issue such shares upon conversion of the Securities. (p) If applicable, the Company will use its best efforts to list the Common Shares issuable upon conversion of the Securities on the New York Stock Exchange or such other national exchange on which the Company's Common Shares are then listed. (q) The Company has complied and will comply with all of the provisions of Florida H.B. 1771, Section 1, Paragraph 17,130 of the Florida Securities and Investors Act, and all regulations thereunder relating to issuers doing business with Cuba.

Appears in 1 contract

Samples: Underwriting Agreement (Developers Diversified Realty Corp)

Covenants and Agreements of the Company. The Company covenants with the several Underwriters participating in the offering of Underwritten Securities that: (a) Immediately following the execution of the applicable Terms Agreement, the Company will prepare a Prospectus Supplement setting forth the principal amount of Underwritten Securities covered thereby and their terms not otherwise specified in the Prospectus or the Indenture, as the case may be, pursuant to which the Underwritten Securities are being issued, the names of the Underwriters participating in the offering and the principal amount of Underwritten Securities which each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, the price at which the Underwritten Securities are to be purchased by the Underwriters from the Company, the initial public offering price, if any, the selling concession and reallowance, if any, any delayed delivery arrangements, and such other information as you and the Company deem appropriate in connection with the offering of the Underwritten Securities; and the Company will promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations. (b) The Company will advise you promptly of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting thereof, if issued. The Company will advise you promptly of the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus or any document to be filed pursuant to the ~~1934~~ 1000 Xxx. ~~Xxe~~ The Company will advise you promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information. (c) If the Company elects to rely on Rule 434 under the 1933 Act Regulations, the Company will prepare an abbreviated term sheet that complies with the requirements of Rule 434 under the 1933 Act Regulations and the Company will provide the Underwriters with copies of the form of Rule 434 Prospectus, in such number as the Underwriters may reasonably request, and file or transmit for filing with the Commission the form of Prospectus complying with Rule 434(c)(2) of the 1933 Act in accordance with Rule 424(b) of the 1933 Act by the close of business in New York on the business day immediately succeeding the date of the Terms Agreement. (d) At any time when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, the Company will give you notice of its intention to file any amendment to the Registration Statement or any amendment or supplement to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, and will furnish you with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing, and will not file any such amendment or supplement or other documents in a form to which you or counsel for the Underwriters shall reasonably object in writing or which is not in material compliance with the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act ~~Regulations~~ Regulations, as applicable. (e) The Company will deliver to each Underwriter a signed copy of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith and documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the ~~1933~~ 1000 Xxx) ~~xxd~~ and will also deliver to such Underwriter a conformed copy of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference but without exhibits). (f) The Company will furnish to each Underwriter, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations. (g) If at any time after the effective date of the Registration Statement when a prospectus relating to the Underwritten Securities is required to be delivered under the 1933 Act or the 1934 Act any event relating to or affecting the Company occurs as a result of which the Prospectus or any other prospectus as then in effect 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 Registration Statement or the Prospectus to comply with the 1933 Act or the 1934 Act, the Company will promptly notify you thereof and will amend or supplement the Registration Statement or the Prospectus to correct such statement or omission whether by filing documents pursuant to the 1933 Act, the 1934 Act or ~~otherwise~~ otherwise, as may be necessary to correct such untrue statement or omission or to make the Registration Statement and Prospectus comply with such requirements, and the Company will furnish to the Underwriters a reasonable number of copies of such amendment or supplement. (h) The Company will cooperate with the Underwriters to enable the Underwritten Securities and the Common Shares issuable upon conversion of the Securities, if any, to be qualified for sale under the securities laws and real estate syndication laws of such jurisdictions as you may designate and at the request of the Underwriters will make such applications and furnish such information as may be required of it as the issuer of the Underwritten Securities and the Common Shares issuable upon conversion of the Securities, if any, for that purpose; provided, however, that the Company shall not be required to qualify to do business or to file a general consent to service of process in any such jurisdiction. The Company will, from time to time, prepare and file such statements and reports as are or may be required of it as the issuer of the Underwritten Securities and the Common Shares issuable upon conversion of the Securities, if any, to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for the distribution of the Underwritten Securities; and in each jurisdiction in which the Underwritten Securities and the Common Shares issuable upon conversion of the Securities, if any, have been so qualified, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities and the Common Shares issuable upon conversion of the Securities, if any; provided, however, that the Company shall not be obligated to qualify as a foreign corporation in any jurisdiction where it is not so qualified. (i) With respect to each sale of Underwritten Securities, the Company will make generally available to its security holders as soon as practicable, but in any event no later than 60 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) which will be in reasonable detail (but which need not be audited) and which will comply with Section 11(a) of the 1933 Act covering a period of at least twelve months beginning not later than the first day of the Company's ’s fiscal quarter next following the "“effective date" ” (as defined in said Rule 158) of the Registration Statement. (j) The Company will furnish to its shareholders annual reports containing financial statements certified by independent public accountants and with quarterly summary financial information in reasonable detail which may be unaudited. During the period of five years from the date hereof, the Company will deliver to you and, upon request, to each of the other Underwriters, (i) copies of each annual report of the Company and each other report furnished by the Company to its shareholders; and will deliver to you, (ii) as soon as they are available, copies of any other reports (financial or other) which the Company shall publish or otherwise make available to any of its security holders as such, and (iii) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange. In the event the Company has active subsidiaries, such financial statements will be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to its shareholders generally. Separate financial statements shall be furnished for all subsidiaries whose accounts are not consolidated but which at the time are significant subsidiaries as defined in the 1933 Act Regulations. (k) The Company will use the net proceeds received by it from the sale of Underwritten Securities in the manner specified in the Prospectus under "“Use of Proceeds."” (l) The Company will use its best efforts to continue to meet the requirements to qualify as a ~~"real estate investment trust"~~ REIT under the Code for the taxable year in which sales of the Underwritten Securities are to occur, unless otherwise specified in the Prospectus. (m) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, will file promptly all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time periods prescribed by the 1934 Act and the 1934 Act Regulations~~. [~~. (n) The Company will not, between the date of the applicable Terms Agreement and the termination of any trading restrictions or the Closing Time, whichever is later, with respect to the Underwritten Securities covered thereby, without your prior written consent, offer or sell, grant any option for the sale of, or enter into any agreement to sell, any debt securities of the Company with a maturity of more than one year (other than the Underwritten Securities which are to be sold pursuant to such Terms Agreement), or if such Terms Agreement relates to Senior Securities or Subordinated Securities that are convertible into Common Shares, any Common Shares or any security convertible into Common Shares (except for Common Shares issued pursuant to reservations, agreements, employee benefit plans, dividend reinvestment plans, or employee stock option plans), except as may otherwise be provided in the applicable Terms Agreement.] (o) If applicable, the Company will reserve and keep available at all times, free of preemptive rights or other similar rights, a sufficient number of Common Shares for the purpose of enabling the Company to satisfy any obligations to issue such shares upon conversion of the Securities. (p) If applicable, the Company will use its best efforts to list the Common Shares issuable upon conversion of the Securities on the New York Stock Exchange or such other national exchange on which the Company's ’s Common Shares are then listed. (q) The Company has complied and will comply with all of the provisions of Florida H.B. 1771, Section 1, Paragraph 17,130 of the Florida Securities and Investors Act, and all regulations thereunder relating to issuers doing business with Cuba.

Appears in 1 contract

Samples: Underwriting Agreement (Developers Diversified Realty Corp)

Covenants and Agreements of the Company. The Company covenants with the several Underwriters participating in the offering of Underwritten Securities that: (a) Immediately following the execution of the applicable Terms Agreement, the Company will prepare a Prospectus Supplement setting forth the principal amount of Underwritten Securities covered thereby and their terms not otherwise specified in the Prospectus or the Indenture, as the case may be, pursuant to which the Underwritten Securities are being issued, the names of the Underwriters participating in the offering and the principal amount of Underwritten Securities which each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, the price at which the Underwritten Securities are to be purchased by the Underwriters from the Company, the initial public offering price, if any, the selling concession and reallowance, if any, any delayed delivery arrangements, and such other information as you and the Company deem appropriate in connection with the offering of the Underwritten Securities; and the Company will promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations. (b) The Company will advise you promptly of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting thereof, if issued. The Company will advise you promptly of the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus or any document to be filed pursuant to the 1934 ~~Xxx~~Act. ~~Xxe~~ The Company will advise you promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information. (c) If the Company elects to rely on Rule 434 under the 1933 Act Regulations, the Company will prepare an abbreviated term sheet that complies with the requirements of Rule 434 under the 1933 Act Regulations and the Company will provide the Underwriters with copies of the form of Rule 434 Prospectus, in such number as the Underwriters may reasonably request, and file or transmit for filing with the Commission the form of Prospectus complying with Rule 434(c)(2) of the 1933 Act in accordance with Rule 424(b) of the 1933 Act by the close of business in New York on the business day immediately succeeding the date of the Terms Agreement. (d) At any time when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, the Company will give you notice of its intention to file any amendment to the Registration Statement or any amendment or supplement to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, and will furnish you with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing, and will not file any such amendment or supplement or other documents in a form to which you or counsel for the Underwriters shall reasonably object in writing or which is not in material compliance with the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act ~~Regulations~~ Regulations, as applicable. (e) The Company will deliver to each Underwriter a signed copy of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith and documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 ~~Xxx~~Act) ~~xxd~~ and will also deliver to such Underwriter a conformed copy of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference but without exhibits). (f) The Company will furnish to each Underwriter, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations. (g) If at any time after the effective date of the Registration Statement when a prospectus relating to the Underwritten Securities is required to be delivered under the 1933 Act or the 1934 Act any event relating to or affecting the Company occurs as a result of which the Prospectus or any other prospectus as then in effect 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 Registration Statement or the Prospectus to comply with the 1933 Act or the 1934 Act, the Company will promptly notify you thereof and will amend or supplement the Registration Statement or the Prospectus to correct such statement or omission whether by filing documents pursuant to the 1933 Act, the 1934 Act or ~~otherwise~~ otherwise, as may be necessary to correct such untrue statement or omission or to make the Registration Statement and Prospectus comply with such requirements, and the Company will furnish to the Underwriters a reasonable number of copies of such amendment or supplement. (h) The Company will cooperate with the Underwriters to enable the Underwritten Securities and the Common Shares issuable upon conversion of the Securities, if any, to be qualified for sale under the securities laws and real estate syndication laws of such jurisdictions as you may designate and at the request of the Underwriters will make such applications and furnish such information as may be required of it as the issuer of the Underwritten Securities and the Common Shares issuable upon conversion of the Securities, if any, for that purpose; provided, however, that the Company shall not be required to qualify to do business or to file a general consent to service of process in any such jurisdiction. The Company will, from time to time, prepare and file such statements and reports as are or may be required of it as the issuer of the Underwritten Securities and the Common Shares issuable upon conversion of the Securities, if any, to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for the distribution of the Underwritten Securities; and in each jurisdiction in which the Underwritten Securities and the Common Shares issuable upon conversion of the Securities, if any, have been so qualified, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities and the Common Shares issuable upon conversion of the Securities, if any; provided, however, that the Company shall not be obligated to qualify as a foreign corporation in any jurisdiction where it is not so qualified. (i) With respect to each sale of Underwritten Securities, the Company will make generally available to its security holders as soon as practicable, but in any event no later than 60 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) which will be in reasonable detail (but which need not be audited) and which will comply with Section 11(a) of the 1933 Act covering a period of at least twelve months beginning not later than the first day of the Company's ’s fiscal quarter next following the "“effective date" ” (as defined in said Rule 158) of the Registration Statement. (j) The Company will furnish to its shareholders annual reports containing financial statements certified by independent registered public ~~accountants~~ accounting firms and with quarterly summary financial information in reasonable detail which may be unaudited. During the period of five years from the date hereof, the Company will deliver to you and, upon request, to each of the other Underwriters, (i) copies of each annual report of the Company and each other report furnished by the Company to its shareholders; and will deliver to you, (ii) as soon as they are available, copies of any other reports (financial or other) which the Company shall publish or otherwise make available to any of its security holders as such, and (iii) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange. In the event the Company has active subsidiaries, such financial statements will be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to its shareholders generally. Separate financial statements shall be furnished for all subsidiaries whose accounts are not consolidated but which at the time are significant subsidiaries as defined in the 1933 Act Regulations. (k) The Company will use the net proceeds received by it from the sale of Underwritten Securities in the manner specified in the Prospectus under "“Use of Proceeds."” (l) The Company will use its best efforts to continue to meet the requirements to qualify as a ~~"real estate investment trust"~~ REIT under the Code for the taxable year in which sales of the Underwritten Securities are to occur, unless otherwise specified in the Prospectus. (m) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, will file promptly all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time periods prescribed by the 1934 Act and the 1934 Act Regulations~~. [~~. (n) The Company will not, between the date of the applicable Terms Agreement and the termination of any trading restrictions or the Closing Time, whichever is later, with respect to the Underwritten Securities covered thereby, without your prior written consent, offer or sell, grant any option for the sale of, or enter into any agreement to sell, any debt securities of the Company with a maturity of more than one year (other than the Underwritten Securities which are to be sold pursuant to such Terms Agreement), or if such Terms Agreement relates to Senior Securities or Subordinated Securities that are convertible into Common Shares, any Common Shares or any security convertible into Common Shares (except for Common Shares issued pursuant to reservations, agreements, employee benefit plans, dividend reinvestment plans, or employee stock option plans), except as may otherwise be provided in the applicable Terms Agreement.] (o) If applicable, the Company will reserve and keep available at all times, free of preemptive rights or other similar rights, a sufficient number of Common Shares for the purpose of enabling the Company to satisfy any obligations to issue such shares upon conversion of the Securities. (p) If applicable, the Company will use its best efforts to list the Common Shares issuable upon conversion of the Securities on the ~~New York Stock Exchange~~ NYSE or such other national exchange on which the Company's ’s Common Shares are then listed. (q) The Company has complied and will comply with all of the provisions of Florida H.B. 1771, Section 1, Paragraph 17,130 of the Florida Securities and Investors Act, and all regulations thereunder relating to issuers doing business with Cuba.

Appears in 1 contract

Samples: Underwriting Agreement (Developers Diversified Realty Corp)

Covenants and Agreements of the Company. The Company covenants with the several Underwriters participating in the offering of Underwritten Securities that: (a) Immediately following the execution of the applicable Terms Agreement, the Company will prepare a Prospectus Supplement setting forth the ~~principal amount~~ number of Underwritten Securities covered thereby and their terms not otherwise specified in the Prospectus or the ~~Indenture~~applicable Warrant Agreement, if any, as the case may be, pursuant to which the Underwritten Securities are being issued, the names of the Underwriters participating in the offering and the ~~principal amount~~ number of Underwritten Securities which each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, the price at which the Underwritten Securities are to be purchased by the Underwriters from the Company, the initial public offering price, if any, the selling concession and reallowance, if any, any delayed delivery arrangements, and such other information as you and the Company deem appropriate in connection with the offering of the Underwritten Securities; and the Company will promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations. (b) The Company will advise you promptly of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting thereof, if issued. The Company will advise you promptly of the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus or any document to be filed pursuant to the ~~1934~~ 1000 Xxx. ~~Xxe~~ The Company will advise you promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information. (c) If the Company elects to rely on Rule 434 under the 1933 Act Regulations, the Company will prepare an abbreviated term sheet that complies with the requirements of Rule 434 under the 1933 Act Regulations and the Company will provide the Underwriters with copies of the form of Rule 434 Prospectus, in such number as the Underwriters may reasonably request, and file or transmit for filing with the Commission the form of Prospectus complying with Rule 434(c)(2) of the 1933 Act in accordance with Rule 424(b) of the 1933 Act by the close of business in New York on the business day immediately succeeding the date of the Terms Agreement. (d) At any time when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, the Company will give you notice of its intention to file any amendment to the Registration Statement or any amendment or supplement to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, and will furnish you with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing, and will not file any such amendment or supplement or other documents in a form to which you or counsel for the Underwriters shall reasonably object in writing or which is not in material compliance with the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act ~~Regulations~~ Regulations, as applicable. (e) The Company will deliver to each Underwriter a signed copy of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith and documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the ~~1933~~ 1000 Xxx) ~~xxd~~ and will also deliver to such Underwriter a conformed copy of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference but without exhibits). (f) The Company will furnish to each Underwriter, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations. (g) If at any time after the effective date of the Registration Statement when a prospectus relating to the Underwritten Securities is required to be delivered under the 1933 Act or the 1934 Act any event relating to or affecting the Company occurs as a result of which the Prospectus or any other prospectus as then in effect 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 Registration Statement or the Prospectus to comply with the 1933 Act or the 1934 Act, the Company will promptly notify you thereof and will amend or supplement the Registration Statement or the Prospectus to correct such statement or omission whether by filing documents pursuant to the 1933 Act, the 1934 Act or ~~otherwise~~ otherwise, as may be necessary to correct such untrue statement or omission or to make the Registration Statement and Prospectus comply with such requirements, and the Company will furnish to the Underwriters a reasonable number of copies of such amendment or supplement. (h) The Company will cooperate with the Underwriters to enable the Underwritten ~~Securities~~ Securities, the Warrant Securities, if any, and the Common Shares issuable upon conversion of the ~~Securities~~Preferred Shares or the Depositary Shares, if any, to be qualified for sale under the securities laws and real estate syndication laws of such jurisdictions as you may designate and at the request of the Underwriters will make such applications and furnish such information as may be required of it as the issuer of the Underwritten ~~Securities~~ Securities, the Warrant Securities, if any, and the Common Shares issuable upon conversion of the ~~Securities~~Preferred Shares or the Depositary Shares, if any, for that purpose; provided, however, that the Company shall not be required to qualify to do business or to file a general consent to service of process in any such jurisdiction. The Company will, from time to time, prepare and file such statements and reports as are or may be required of it as the issuer of the Underwritten ~~Securities~~ Securities, the Warrant Securities, if any, and the Common Shares issuable upon conversion of the ~~Securities~~Preferred Shares or the Depositary Shares, if any, to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for the distribution of the Underwritten Securities; and in each jurisdiction in which the Underwritten ~~Securities~~ Securities, the Warrant Securities, if any, and the Common Shares issuable upon conversion of the ~~Securities~~Preferred Shares or the Depositary Shares, if any, have been so qualified, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten ~~Securities~~ Securities, the Warrant Securities, if any, and the Common Shares issuable upon conversion of the ~~Securities~~Preferred Shares or the Depositary Shares, if any; provided, however, that the Company shall not be obligated to qualify as a foreign corporation in any jurisdiction where it is not so qualified. (i) With respect to each sale of Underwritten Securities, the Company will make generally available to its security holders as soon as practicable, but in any event no later than 60 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) which will be in reasonable detail (but which need not be audited) and which will comply with Section 11(a) of the 1933 Act covering a period of at least twelve months beginning not later than the first day of the Company's ’s fiscal quarter next following the "“effective date" ” (as defined in said Rule 158) of the Registration Statement. (j) The Company will furnish to its shareholders annual reports containing financial statements certified by independent public accountants and with quarterly summary financial information in reasonable detail which may be unaudited. During the period of five years from the date hereof, the Company will deliver to you and, upon request, to each of the other Underwriters, (i) copies of each annual report of the Company and each other report furnished by the Company to its shareholders; and will deliver to you, (ii) as soon as they are available, copies of any other reports (financial or other) which the Company shall publish or otherwise make available to any of its security holders as such, and (iii) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange. In the event the Company has active subsidiaries, such financial statements will be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to its shareholders generally. Separate financial statements shall be furnished for all subsidiaries whose accounts are not consolidated but which at the time are significant subsidiaries as defined in the 1933 Act Regulations. (k) The Company will use the net proceeds received by it from the sale of Underwritten Securities in the manner specified in the Prospectus under "“Use of Proceeds."” (l) The Company will use its best efforts to continue to meet the requirements to qualify as a ~~"real estate investment trust"~~ REIT under the Code for the taxable year in which sales of the Underwritten Securities are to occur, unless otherwise specified in the Prospectus. (m) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, will file promptly all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time periods prescribed by the 1934 Act and the 1934 Act Regulations~~. [~~. (n) ~~The Company will not, between~~ If the ~~date of the applicable Terms Agreement and the termination of any trading restrictions~~ Preferred Shares or the Closing Time, whichever is later, with respect to the Underwritten Securities covered thereby, without your prior written consent, offer or sell, grant any option for the sale of, or enter into any agreement to sell, any debt securities of the Company with a maturity of more than one year (other than the Underwritten Securities which are to be sold pursuant to such Terms Agreement), or if such Terms Agreement relates to Senior Securities or Subordinated Securities that Depositary Shares are convertible into Common ~~Shares, any Common~~ Shares or any security convertible into Common Shares (except for Common Shares issued pursuant to reservations, agreements, employee benefit plans, dividend reinvestment plans, or employee stock option plans), except as may otherwise be provided in the applicable Terms Agreement.] (o) If applicableif Warrants are issued, the Company will reserve and keep available at all times, free of preemptive rights or other similar rights, a sufficient number of Common Shares or Preferred Shares, as the case may be, for the purpose of enabling the Company to satisfy any obligations to issue such shares upon conversion of the ~~Securities~~Preferred Shares or the Depositary Shares, as the case may be, or upon exercise of the Warrants. (po) If ~~applicable~~the Preferred Shares or Depositary Shares are convertible into Common Shares or if Warrants are exercised, the Company will use its best efforts to list the Common Shares issuable upon conversion of the ~~Securities~~ Preferred Shares or Depositary Shares or upon exercise of the Warrants on the ~~New York Stock Exchange~~ NYSE or such other national exchange on which the Company's ’s Common Shares are then listed. (q) The Company has complied and will comply with all of the provisions of Florida H.B. 1771, Section 1, Paragraph 17,130 of the Florida Securities and Investors Act, and all regulations thereunder relating to issuers doing business with Cuba.

Appears in 1 contract

Samples: Underwriting Agreement (Developers Diversified Realty Corp)

Covenants and Agreements of the Company. The Company covenants and agrees with the ~~several Underwriters participating in the offering of Underwritten Securities~~ Underwriter that: (a) Immediately following the execution of the applicable Terms Agreement, the Company will prepare a Prospectus Supplement setting forth the principal amount of Underwritten Securities covered thereby and their terms not otherwise specified in the Prospectus or the Indenture, as the case may be, pursuant to which the Underwritten Securities are being issued, the names of the Underwriters participating in the offering and the principal amount of Underwritten Securities which each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, the price at which the Underwritten Securities are to be purchased by the Underwriters from the Company, the initial public offering price, if any, the selling concession and reallowance, if any, any delayed delivery arrangements, and such other information as you and the Company deem appropriate in connection with the offering of the Underwritten Securities; and the Company will promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations. (b) The Company will advise ~~you~~ the Underwriter promptly of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting thereof, if issued. ~~The~~ With respect to the sale of the Offered Certificates, the Company will advise ~~you promptly of~~ the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus or any document to be filed pursuant to the 1934 Xxx. Xxe Company will advise you Underwriter promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information. (c) If the Company elects to rely on Rule 434 under the 1933 Act Regulations, the Company will prepare an abbreviated term sheet that complies with the requirements of Rule 434 under the 1933 Act Regulations and the Company will provide the Underwriters with copies of the form of Rule 434 Prospectus, in such number as the Underwriters may reasonably request, and file or transmit for filing with the Commission the form of Prospectus complying with Rule 434(c)(2) of the 1933 Act in accordance with Rule 424(b) of the 1933 Act by the close of business in New York on the business day immediately succeeding the date of the Terms Agreement. (d) At will not at any time ~~when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, the Company will give you notice of its intention to~~ file any amendment to the Registration Statement or ~~any~~ amendment of or supplement to the ~~Prospectus, whether pursuant~~ Prospectus which shall not previously have been submitted to the ~~1933 Act, 1934 Act or otherwise, and will furnish you with copies of any such amendment or supplement~~ Underwriter a reasonable ~~amount of~~ time prior to ~~such~~ the proposed ~~filing, and will not file any such amendment~~ filing thereof or ~~supplement or other documents in a form~~ to which ~~you or counsel for~~ the ~~Underwriters~~ Underwriter shall reasonably object in writing or which is not in ~~material~~ compliance with the ~~1933 Act,~~ Act and the ~~1933 Act~~ Rules and Regulations~~, the 1934 Act or the 1934 Act Regulations as applicable~~. (eb) The Company will ~~deliver~~ prepare and file the Prospectus with the Commission pursuant to ~~each Underwriter a signed copy~~ and in accordance with Rule 424. Subject to the Underwriter's compliance with its obligations pursuant to Section 5 of this Agreement, the Company shall file with the Commission under cover of Form 8-K (i) Evaluation Models-Materials and Structural Term Sheets concurrently with the filing of the ~~Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith and documents incorporated by reference therein~~ Prospectus pursuant to ~~Item 12 of Form S-3~~ Rule 424(b) under the ~~1933 Xxx~~Act or on such earlier date as the Underwriter may reasonably request and (ii) ~~xxd~~ Collateral Term Sheets within two (2) Business Days after such Collateral Term Sheets are made available to prospective investors. Notwithstanding the foregoing, the Company shall not be obligated to file any such Evaluation Models-Materials or ABS Term Sheets that it has determined contain any material error or omission. The Company will ~~also deliver~~ notify the Underwriter prior to the Company's election not to file Evaluation Models-Materials or ABS Term Sheets due to the Company's determination that such Evaluation Models-Materials or ABS Term Sheets contain a material error or omission. In the event of any delay in the delivery by the Underwriter ~~a conformed copy~~ to the Company of the ~~Registration Statement as originally filed~~ Evaluation Models-Materials or ABS Term Sheets required by Section 5(a) of this Agreement or the independent certified public accountants' letter or letters required to be delivered in accordance with Section 5(b) of this Agreement, the Company shall have the right to delay the Closing Date and ~~of each amendment thereto (including documents incorporated by reference but without exhibits)~~to take other appropriate actions. (fc) The Company will ~~furnish to each~~ prepare and file with the Commission, promptly upon the request of the Underwriter, ~~from time~~ any amendment of or supplement to ~~time during~~ the ~~period when~~ Registration Statement or the Prospectus ~~is required to be delivered under~~ which in the ~~1933 Act or the 1934 Act in connection with sales~~ opinion of the ~~Underwritten Securities, such number of copies~~ Underwriter may be necessary to enable the Underwriter to continue the distribution of the ~~Prospectus~~ Offered Certificates and will use its best efforts to cause the same to become effective (~~as amended or supplemented~~if applicable) as ~~such Underwriter may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations~~promptly as possible. (gd) If at any time after the effective date of the Registration ~~Statement when~~ Statement, a prospectus relating to the ~~Underwritten Securities~~ Offered Certificates is required to be delivered under the ~~1933 Act or the 1934 Act~~ Act, and any event ~~relating to or affecting the Company~~ occurs as a result of which the Prospectus or any other prospectus as then in effect would include an any untrue statement of a material ~~fact,~~ 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 Registration Statement~~ or supplement the Prospectus to comply with the ~~1933 Act or the 1934~~ Act, the Company will promptly notify ~~you~~ the Underwriter thereof and will ~~amend~~ prepare an amended or ~~supplement the Registration Statement or the Prospectus to~~ supplemented prospectus which will correct such statement or omission ~~whether by filing documents pursuant~~ or effect such compliance; and, in case the Underwriter is required to deliver a prospectus relating to the ~~1933 Act~~Offered Certificates nine months or more after the date of the Prospectus, the ~~1934 Act~~ Company, upon the request of the Underwriter and at the expense of the Underwriter, will prepare promptly such prospectus or ~~otherwise~~ prospectuses as may be necessary to correct such untrue statement or omission or to make the Registration Statement and Prospectus comply with such requirements, and the Company will furnish to the Underwriters a reasonable number of copies of such amendment or supplement. (h) The Company will cooperate permit compliance with the ~~Underwriters to enable the Underwritten Securities and the Common Shares issuable upon conversion~~ requirements of the Securities, if any, to be qualified for sale under the securities laws and real estate syndication laws of such jurisdictions as you may designate and at the request of the Underwriters will make such applications and furnish such information as may be required of it as the issuer of the Underwritten Securities and the Common Shares issuable upon conversion of the Securities, if any, for that purpose; provided, however, that the Company shall not be required to qualify to do business or to file a general consent to service of process in any such jurisdiction. The Company will, from time to time, prepare and file such statements and reports as are or may be required of it as the issuer of the Underwritten Securities and the Common Shares issuable upon conversion of the Securities, if any, to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for the distribution of the Underwritten Securities; and in each jurisdiction in which the Underwritten Securities and the Common Shares issuable upon conversion of the Securities, if any, have been so qualified, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities and the Common Shares issuable upon conversion of the Securities, if any; provided, however, that the Company shall not be obligated to qualify as a foreign corporation in any jurisdiction where it is not so qualified. (i) With respect to each sale of Underwritten Securities, the Company will make generally available to its security holders as soon as practicable, but in any event no later than 60 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) which will be in reasonable detail (but which need not be audited) and which will comply with Section 11(a) of the 1933 Act covering a period of at least twelve months beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in said Rule 158) of the Registration Statement. (j) The Company will furnish to its shareholders annual reports containing financial statements certified by independent public accountants and with quarterly summary financial information in reasonable detail which may be unaudited. During the period of five years from the date hereof, the Company will deliver to you and, upon request, to each of the other Underwriters, (i) copies of each annual report of the Company and each other report furnished by the Company to its shareholders; and will deliver to you, (ii) as soon as they are available, copies of any other reports (financial or other) which the Company shall publish or otherwise make available to any of its security holders as such, and (iii) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange. In the event the Company has active subsidiaries, such financial statements will be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to its shareholders generally. Separate financial statements shall be furnished for all subsidiaries whose accounts are not consolidated but which at the time are significant subsidiaries as defined in the 1933 Act Regulations. (k) The Company will use the net proceeds received by it from the sale of Underwritten Securities in the manner specified in the Prospectus under "Use of Proceeds." (l) The Company will use its best efforts to continue to meet the requirements to qualify as a "real estate investment trust" under the Code for the taxable year in which sales of the Underwritten Securities are to occur. (m) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, will file promptly all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time periods prescribed by the 1934 Act and the 1934 Act Regulations. [(n) The Company will not, between the date of the applicable Terms Agreement and the termination of any trading restrictions or the Closing Time, whichever is later, with respect to the Underwritten Securities covered thereby, without your prior written consent, offer or sell, grant any option for the sale of, or enter into any agreement to sell, any debt securities of the Company with a maturity of more than one year (other than the Underwritten Securities which are to be sold pursuant to such Terms Agreement10(a)(3), or if such Terms Agreement relates to Senior Securities or Subordinated Securities that are convertible into Common Shares, any Common Shares or any security convertible into Common Shares (except for Common Shares issued pursuant to reservations, agreements, employee benefit plans, dividend reinvestment plans, or employee stock option plans), except as may otherwise be provided in the applicable Terms Agreement.] (o) If applicable, the Company will reserve and keep available at all times, free of preemptive rights or other similar rights, a sufficient number of Common Shares for the purpose of enabling the Company to satisfy any obligations to issue such shares upon conversion of the Securities. (p) If applicable, the Company will use its best efforts to list the Common Shares issuable upon conversion of the Securities on the New York Stock Exchange or such other national exchange on which the Company's Common Shares are then listed. (q) The Company has complied and will comply with all of the provisions of Florida H.B. 1771, Section 1, Paragraph 17,130 of the Florida Securities and Investors Act, and all regulations thereunder relating to issuers doing business with Cuba.

Appears in 1 contract

Samples: Underwriting Agreement (WaMu Asset Acceptance Corp.)

Covenants and Agreements of the Company. The Company covenants with the several Underwriters participating in the offering of Underwritten Securities that: (a) Immediately following the execution of the applicable Terms Agreement, the Company will prepare a Prospectus Supplement setting forth the ~~principal amount~~ number of Underwritten Securities covered thereby and their terms not otherwise specified in the Prospectus or the ~~Indenture~~applicable Warrant Agreement, if any, as the case may be, pursuant to which the Underwritten Securities are being issued, the names of the Underwriters participating in the offering and the ~~principal amount~~ number of Underwritten Securities which each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, the price at which the Underwritten Securities are to be purchased by the Underwriters from the Company, the initial public offering price, if any, the selling concession and reallowance, if any, any delayed delivery arrangements, and such other information as you and the Company deem appropriate in connection with the offering of the Underwritten Securities; and the Company will promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations. (b) The Company will advise you promptly of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting thereof, if issued. The Company will advise you promptly of the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus or any document to be filed pursuant to the 1934 ~~Xxx~~Act. ~~Xxe~~ The Company will advise you promptly of any request by the ~~Commission~~ Comxxxxxxx for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information. (c) If the Company elects to rely on Rule 434 under the 1933 Act Regulations, the Company will prepare an abbreviated term sheet that complies with the requirements of Rule 434 under the 1933 Act Regulations and the Company will provide the Underwriters with copies of the form of Rule 434 Prospectus, in such number as the Underwriters may reasonably request, and file or transmit for filing with the Commission the form of Prospectus complying with Rule 434(c)(2) of the 1933 Act in accordance with Rule 424(b) of the 1933 Act by the close of business in New York on the business day immediately succeeding the date of the Terms Agreement. (d) At any time when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, the Company will give you notice of its intention to file any amendment to the Registration Statement or any amendment or supplement to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, and will furnish you with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing, and will not file any such amendment or supplement or other documents in a form to which you or counsel for the Underwriters shall reasonably object in writing or which is not in material compliance with the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act ~~Regulations~~ Regulations, as applicable. (e) The Company will deliver to each Underwriter a signed copy of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith and documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 ~~Xxx~~Act) ~~xxd~~ and will also deliver to such Underwriter a conformed copy of ~~the Registration~~ xxx Xxxxstration Statement as originally filed and of each amendment thereto (including documents incorporated by reference but without exhibits). (f) The Company will furnish to each Underwriter, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations. (g) If at any time after the effective date of the Registration Statement when a prospectus relating to the Underwritten Securities is required to be delivered under the 1933 Act or the 1934 Act any event relating to or affecting the Company occurs as a result of which the Prospectus or any other prospectus as then in effect 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 Registration Statement or the Prospectus to comply with the 1933 Act or the 1934 Act, the Company will promptly notify you thereof and will amend or supplement the Registration Statement or the Prospectus to correct such statement or omission whether by filing documents pursuant to the 1933 Act, the 1934 Act or ~~otherwise~~ otherwise, as may be necessary to correct such untrue statement or omission or to make the Registration Statement and Prospectus comply with such requirements, and the Company will furnish to the Underwriters a reasonable number of copies of such amendment or supplement. (h) The Company will cooperate with the Underwriters to enable the Underwritten ~~Securities~~ Securities, the Warrant Securities, if any, and the Common Shares issuable upon conversion of the ~~Securities~~Preferred Shares or the Depositary Shares, if any, to be qualified for sale under the securities laws and real estate syndication laws of such jurisdictions as you may designate and at the request of the Underwriters will make such applications and furnish such information as may be required of it as the issuer of the Underwritten ~~Securities~~ Securities, the Warrant Securities, if any, and the Common Shares issuable upon conversion of the ~~Securities~~Preferred Shares or the Depositary Shares, if any, for that purpose; provided, however, that the Company shall not be required to qualify to do business or to file a general consent to service of process in any such jurisdiction. The Company will, from time to time, prepare and file such statements and reports as are or may be required of it as the issuer of the Underwritten ~~Securities~~ Securities, the Warrant Securities, if any, and the Common Shares issuable upon conversion of the ~~Securities~~Preferred Shares or the Depositary Shares, if any, to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for the distribution of the Underwritten Securities; and in each jurisdiction in which the Underwritten ~~Securities~~ Securities, the Warrant Securities, if any, and the Common Shares issuable upon conversion of the ~~Securities~~Preferred Shares or the Depositary Shares, if any, have been so qualified, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten ~~Securities~~ Securities, the Warrant Securities, if any, and the Common Shares issuable upon conversion of the ~~Securities~~Preferred Shares or the Depositary Shares, if any; provided, however, that the Company shall not be obligated to qualify as a foreign corporation in any jurisdiction where it is not so qualified. (i) With respect to each sale of Underwritten Securities, the Company will make generally available to its security holders as soon as practicable, but in any event no later than 60 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) which will be in reasonable detail (but which need not be audited) and which will comply with Section 11(a) of the 1933 Act covering a period of at least twelve months beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in said Rule 158) of the Registration Statement. (j) The Company will furnish to its shareholders annual reports containing financial statements certified by independent public accountants and with quarterly summary financial information in reasonable detail which may be unaudited. During the period of five years from the date hereof, the Company will deliver to you and, upon request, to each of the other Underwriters, (i) copies of each annual report of the Company and each other report furnished by the Company to its shareholders; and will deliver to you, (ii) as soon as they are available, copies of any other reports (financial or other) which the Company shall publish or otherwise make available to any of its security holders as such, and (iii) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange. In the event the Company has active subsidiaries, such financial statements will be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to its shareholders generally. Separate financial statements shall be furnished for all subsidiaries whose accounts are not consolidated but which at the time are significant subsidiaries as defined in the 1933 Act Regulations. (k) The Company will use the net proceeds received by it from the sale of Underwritten Securities in the manner specified in the Prospectus under "Use of Proceeds." (l) The Company will use its best efforts to continue to meet the requirements to qualify as a ~~"real estate investment trust"~~ REIT under the Code for the taxable year in which sales of the Underwritten Securities are to occur, unless otherwise specified in the Prospectus. (m) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, will file promptly all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time periods prescribed by the 1934 Act and the 1934 Act Regulations~~. [~~. (n) ~~The Company will not, between~~ If the ~~date of the applicable Terms Agreement and the termination of any trading restrictions~~ Preferred Shares or the Closing Time, whichever is later, with respect to the Underwritten Securities covered thereby, without your prior written consent, offer or sell, grant any option for the sale of, or enter into any agreement to sell, any debt securities of the Company with a maturity of more than one year (other than the Underwritten Securities which are to be sold pursuant to such Terms Agreement), or if such Terms Agreement relates to Senior Securities or Subordinated Securities that Depositary Shares are convertible into Common ~~Shares, any Common~~ Shares or any security convertible into Common Shares (except for Common Shares issued pursuant to reservations, agreements, employee benefit plans, dividend reinvestment plans, or employee stock option plans), except as may otherwise be provided in the applicable Terms Agreement.] (o) If applicableif Warrants are issued, the Company will reserve and keep available at all times, free of preemptive rights or other similar rights, a sufficient number of Common Shares or Preferred Shares, as the case may be, for the purpose of enabling the Company to satisfy any obligations to issue such shares upon conversion of the ~~Securities~~Preferred Shares or the Depositary Shares, as the case may be, or upon exercise of the Warrants. (po) If ~~applicable~~the Preferred Shares or Depositary Shares are convertible into Common Shares or if Warrants are exercised, the Company will use its best efforts to list the Common Shares issuable upon conversion of the ~~Securities~~ Preferred Shares or Depositary Shares or upon exercise of the Warrants on the ~~New York Stock Exchange~~ NYSE or such other national exchange on which the Company's Common Shares are then listed. (q) The Company has complied and will comply with all of the provisions of Florida H.B. 1771, Section 1, Paragraph 17,130 of the Florida Securities and Investors Act, and all regulations thereunder relating to issuers doing business with Cuba.

Appears in 1 contract

Samples: Underwriting Agreement (Developers Diversified Realty Corp)

Covenants and Agreements of the Company. The Company covenants with the several Underwriters participating in the offering of Underwritten Securities that: (a) ~~Immediately~~ Promptly following the execution of the applicable Terms Agreement, the Company will prepare a Prospectus Supplement setting forth the ~~principal amount~~ number of Underwritten Securities covered thereby and their terms not otherwise specified in the Prospectus or the ~~Indenture~~applicable Warrant Agreement, if any, as the case may be, pursuant to which the Underwritten Securities are being issued, the names of the Underwriters participating in the offering and the ~~principal amount~~ number of Underwritten Securities ~~which~~ that each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, the price at which the Underwritten Securities are to be purchased by the Underwriters from the Company, the initial public offering price, if any, the selling concession and reallowance, if any, any delayed delivery arrangements, and such other information as you and the Company deem appropriate in connection with the offering of the Underwritten Securities; and the Company will promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations.the (b) The Company will advise you promptly after it learns of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting thereof, if issued. The Company will advise you promptly of the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus or any document to be filed pursuant to the 1934 Xxx. ~~Xxe~~ Xhe Company will advise you promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information. (c) If the Company elects to rely on Rule 434 under the 1933 Act Regulations, the Company will prepare an abbreviated term sheet that complies with the requirements of Rule 434 under the 1933 Act Regulations and the Company will provide the Underwriters with copies of the form of Rule 434 Prospectus, in such number as the Underwriters may reasonably request, and file or transmit for filing with the Commission the form of Prospectus complying with Rule 434(c)(2) of the 1933 Act in accordance with Rule 424(b) of the 1933 Act by the close of business in New York on the business day immediately succeeding the date of the Terms Agreement. (d) At any time when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, the Company will give you notice of its intention to file any amendment to the Registration Statement or any amendment or supplement to the Prospectus, whether pursuant to the 1933 Act, 1934 Act or otherwise, and will furnish you with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing, and will not file any such amendment or supplement or other documents in a form to which you or counsel for the Underwriters shall reasonably object in writing or which is not in material compliance with the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations as applicable. (e) The Company will deliver to each Underwriter a signed copy of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith and documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Xxx) xxd will also deliver to such Underwriter ~~a conformed copy of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference but without exhibits).~~a (f) The Company will furnish to each Underwriter, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations. (g) If at any time after the effective date of the Registration Statement when a prospectus relating to the Underwritten Securities is required to be delivered under the 1933 Act or the 1934 Act any event relating to or affecting the Company occurs as a result of which the Prospectus or any other prospectus as then in effect 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 Registration Statement or the Prospectus to comply with the 1933 Act or the 1934 Act, the Company will promptly notify you thereof and will amend or supplement the Registration Statement or the Prospectus to correct such statement or omission whether by filing documents pursuant to the 1933 Act, the 1934 Act or otherwise as may be necessary to correct such untrue statement or omission or to make the Registration Statement and Prospectus comply with such requirements, and the Company will furnish to the Underwriters a reasonable number of copies of such amendment or supplementotherwise. (h) The Company will cooperate with the Underwriters to enable the Underwritten ~~Securities~~ Securities, the Warrant Securities, if any, and the Common ~~Shares~~ Stock issuable upon conversion of the ~~Securities~~Preferred Stock or the Depositary Shares, if any, to be qualified for sale under the securities laws and real estate syndication laws of such jurisdictions as you may designate after consultation with the Company and at the request of the Underwriters will make such applications and furnish such information as may be required of it as the issuer of the Underwritten ~~Securities~~ Securities, the Warrant Securities, if any, and the Common ~~Shares~~ Stock issuable upon conversion of the ~~Securities~~Preferred Stock or the Depositary Shares, if any, for that purpose; provided, however, that the Company shall not be required to qualify to do business or to file a general consent to service of process in any such jurisdiction. The Company will, from time to time, prepare and file such statements and reports as are or may be required of it as the issuer of the Underwritten ~~Securities~~ Securities, the Warrant Securities, if any, and the Common ~~Shares~~ Stock issuable upon exercise of the Warrant Securities, if any, and the Common Stock issuable upon conversion of the ~~Securities~~Preferred Stock or the Depositary Shares, if any, to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for the distribution of the Underwritten Securities; and in each jurisdiction in which the Underwritten ~~Securities and the Common Shares issuable upon conversion of the~~ Securities, ~~if any, have been so qualified,~~ the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities and the Common Shares issuable upon conversion of the Securities, if any; provided, however, that the Company shall not be obligated to qualify as a foreign corporation in any jurisdiction where it is not so qualified.Warrant (i) With respect to each sale of Underwritten Securities, the Company will make generally available to its security holders as soon as practicable, but in any event no later than 60 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) ~~which~~ that will be in reasonable detail (but which need not be audited) and ~~which~~ that will comply with Section 11(a) of the 1933 Act covering a period of at least twelve months beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in said Rule 158) of the Registration Statement. (j) The Company will furnish to its shareholders annual reports containing financial statements certified by independent public accountants and with quarterly summary financial information in reasonable detail which may be unaudited. During the period of ~~five~~ three years from the date hereof, the Company will deliver to you and, upon request, to each of the other Underwriters, (i) copies of each annual report of the Company and each other report furnished by the Company to its shareholders; and will deliver to you, (ii) as soon as they are available, copies of any other reports (financial or other) which the Company shall publish or otherwise make available to any of its security holders as such, and (iii) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange. In the event the Company has active subsidiaries, such financial statements will be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to its shareholders generally. Separate financial statements shall be furnished for all subsidiaries whose accounts are not consolidated but which at the time are significant subsidiaries as defined in the 1933 Act Regulations. (k) The Company will use the net proceeds received by it from the sale of Underwritten Securities in all material respects consistent with the ~~manner specified~~ description thereof in the Prospectus under "Use of Proceeds." (l) The Company will use its best efforts to continue to meet the requirements to qualify as a "real estate investment trust" under the Code for the taxable year in which sales of the Underwritten Securities have occurred or are to occur. (m) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, will file promptly all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time periods prescribed by the 1934 Act and the 1934 Act Regulations~~. [~~. (n) The Company will not, ~~between~~ for 90 days from the date of the applicable ~~Terms Agreement and the termination of any trading restrictions or the Closing Time~~Prospectus Supplement, ~~whichever is later,~~ except with ~~respect to the Underwritten Securities covered thereby, without~~ your prior written consent, ~~offer or~~ offer, sell, ~~grant~~ contract to sell or otherwise dispose of any ~~option~~ of its debt or equity securities or register for sale under the ~~sale of~~1933 Act any of its debt or equity securities, other than pursuant to this Agreement, employee benefit plans existing on the date of this Agreement and conversion or ~~enter into any agreement~~ exercise of securities outstanding on the date of this Agreement. The Company further agrees that it will cause its officers and directors to ~~sell, any debt~~ observe a similar restriction respecting securities of the Company with a maturity of more than one year (other than the Underwritten Securities which are to be sold pursuant to such Terms Agreement), or if such Terms Agreement relates to Senior Securities or Subordinated Securities that are convertible into Common Shares, any Common Shares or any security convertible into Common Shares (except for Common Shares issued pursuant to reservations, agreements, employee benefit plans, dividend reinvestment plans, or employee stock option plans), except as may otherwise be provided in the applicable Terms Agreementowned by them.] (o) If ~~applicable~~the Preferred Stock or Depositary Shares are convertible into Common Stock or if Common Stock Warrants are issued, the Company will reserve and keep available at all times, free of preemptive ~~rights~~ or other similar rights, a sufficient number of shares of Common ~~Shares~~ Stock or Preferred Stock, as the case may be, for the purpose of enabling the Company to ~~satisfy~~ satisfy, any obligations to issue such shares upon conversion of the ~~Securities~~Preferred Stock or the Depositary Shares, as the case may be, or upon exercise of the Common Stock Warrants. (p) If ~~applicable~~the Preferred Stock or Depositary Shares are convertible into Common Stock or if the Common Stock Warrants are exercised, the Company will use its best efforts to list the shares of Common ~~Shares~~ Stock issuable upon conversion of the ~~Securities~~ Preferred Stock or Depositary Shares or upon exercise of the Common Stock Warrants on the New York Stock Exchange or such other national exchange on which the Company's shares of Common ~~Shares~~ Stock are then listed. (q) The Company has complied and will comply with all of the provisions of Florida H.B. 1771, Section 1, ~~Paragraph 17,130~~ 117,130 of the Florida Securities and Investors Act, and all regulations thereunder relating to issuers doing business with Cuba.

Appears in 1 contract

Samples: Underwriting Agreement (American Health Properties Inc)

Covenants and Agreements of the Company. The Company covenants with the several Underwriters participating in the offering of Underwritten Securities that: (a) Immediately following the execution of the applicable Terms Agreement, the Company will prepare a Prospectus Supplement setting forth the principal amount of Underwritten Securities covered thereby and their terms not otherwise specified in the Prospectus or the Indenture, as the case may be, pursuant to which the Underwritten Securities are being issued, the names of the Underwriters participating in the offering and the principal amount of Underwritten Securities which each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, the price at which the Underwritten Securities are to be purchased by the Underwriters from the Company, the initial public offering price, if any, the selling concession and reallowance, if any, any delayed delivery arrangements, and such other information as you and the Company deem appropriate in connection with the offering of the Underwritten Securities; and the Company will promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations. (b) The Company will advise you promptly of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible the lifting thereof, if issued. The Company will advise you promptly of the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus or any document to be filed pursuant to the ~~1934~~ 1000 Xxx. ~~Xxe~~ The Company will advise you promptly of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for additional information. (c) If the Company elects to rely on Rule 434 under the 1933 Act Regulations, the Company will prepare an abbreviated term sheet that complies with the requirements of Rule 434 under the 1933 Act Regulations and the Company will provide the Underwriters with copies of the form of Rule 434 Prospectus, in such number as the Underwriters may reasonably request, and file or transmit for filing with the Commission the form of Prospectus complying with Rule 434(c)(2) of the 1933 Act in accordance with Rule 424(b) of the 1933 Act by the close of business in New York on the business day immediately succeeding the date of the Terms Agreement. (d) At any time when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, the Company will give you notice of its intention to file any amendment to the Registration Statement or any amendment or supplement to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, and will furnish you with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing, and will not file any such amendment or supplement or other documents in a form to which you or counsel for the Underwriters shall reasonably object in writing or which is not in material compliance with the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act ~~Regulations~~ Regulations, as applicable. (e) The Company will deliver to each Underwriter a signed copy of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith and documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the ~~1933~~ 1000 Xxx) ~~xxd~~ and will also deliver to such Underwriter a conformed copy of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference but without exhibits). (f) The Company will furnish to each Underwriter, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations. (g) If at any time after the effective date of the Registration Statement when a prospectus relating to the Underwritten Securities is required to be delivered under the 1933 Act or the 1934 Act any event relating to or affecting the Company occurs as a result of which the Prospectus or any other prospectus as then in effect 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 Registration Statement or the Prospectus to comply with the 1933 Act or the 1934 Act, the Company will promptly notify you thereof and will amend or supplement the Registration Statement or the Prospectus to correct such statement or omission whether by filing documents pursuant to the 1933 Act, the 1934 Act or ~~otherwise~~ otherwise, as may be necessary to correct such untrue statement or omission or to make the Registration Statement and Prospectus comply with such requirements, and the Company will furnish to the Underwriters a reasonable number of copies of such amendment or supplement. (h) The Company will cooperate with the Underwriters to enable the Underwritten Securities and the Common Shares issuable upon conversion of the Securities, if any, to be qualified for sale under the securities laws and real estate syndication laws of such jurisdictions as you may designate and at the request of the Underwriters will make such applications and furnish such information as may be required of it as the issuer of the Underwritten Securities and the Common Shares issuable upon conversion of the Securities, if any, for that purpose; provided, however, that the Company shall not be required to qualify to do business or to file a general consent to service of process in any such jurisdiction. The Company will, from time to time, prepare and file such statements and reports as are or may be required of it as the issuer of the Underwritten Securities and the Common Shares issuable upon conversion of the Securities, if any, to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for the distribution of the Underwritten Securities; and in each jurisdiction in which the Underwritten Securities and the Common Shares issuable upon conversion of the Securities, if any, have been so qualified, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities and the Common Shares issuable upon conversion of the Securities, if any; provided, however, that the Company shall not be obligated to qualify as a foreign corporation in any jurisdiction where it is not so qualified. (i) With respect to each sale of Underwritten Securities, the Company will make generally available to its security holders as soon as practicable, but in any event no later than 60 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) which will be in reasonable detail (but which need not be audited) and which will comply with Section 11(a) of the 1933 Act covering a period of at least twelve months beginning not later than the first day of the Company's ’s fiscal quarter next following the "“effective date" ” (as defined in said Rule 158) of the Registration Statement. (j) The Company will furnish to its shareholders annual reports containing financial statements certified by independent registered public ~~accountants~~ accounting firms and with quarterly summary financial information in reasonable detail which may be unaudited. During the period of five years from the date hereof, the Company will deliver to you and, upon request, to each of the other Underwriters, (i) copies of each annual report of the Company and each other report furnished by the Company to its shareholders; and will deliver to you, (ii) as soon as they are available, copies of any other reports (financial or other) which the Company shall publish or otherwise make available to any of its security holders as such, and (iii) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange. In the event the Company has active subsidiaries, such financial statements will be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to its shareholders generally. Separate financial statements shall be furnished for all subsidiaries whose accounts are not consolidated but which at the time are significant subsidiaries as defined in the 1933 Act Regulations. (k) The Company will use the net proceeds received by it from the sale of Underwritten Securities in the manner specified in the Prospectus under "“Use of Proceeds."” (l) The Company will use its best efforts to continue to meet the requirements to qualify as a ~~"real estate investment trust"~~ REIT under the Code for the taxable year in which sales of the Underwritten Securities are to occur, unless otherwise specified in the Prospectus. (m) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, will file promptly all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time periods prescribed by the 1934 Act and the 1934 Act Regulations~~. [~~. (n) The Company will not, between the date of the applicable Terms Agreement and the termination of any trading restrictions or the Closing Time, whichever is later, with respect to the Underwritten Securities covered thereby, without your prior written consent, offer or sell, grant any option for the sale of, or enter into any agreement to sell, any debt securities of the Company with a maturity of more than one year (other than the Underwritten Securities which are to be sold pursuant to such Terms Agreement), or if such Terms Agreement relates to Senior Securities or Subordinated Securities that are convertible into Common Shares, any Common Shares or any security convertible into Common Shares (except for Common Shares issued pursuant to reservations, agreements, employee benefit plans, dividend reinvestment plans, or employee stock option plans), except as may otherwise be provided in the applicable Terms Agreement.] (o) If applicable, the Company will reserve and keep available at all times, free of preemptive rights or other similar rights, a sufficient number of Common Shares for the purpose of enabling the Company to satisfy any obligations to issue such shares upon conversion of the Securities. (p) If applicable, the Company will use its best efforts to list the Common Shares issuable upon conversion of the Securities on the New York Stock Exchange or such other national exchange on which the Company's ’s Common Shares are then listed. (q) The Company has complied and will comply with all of the provisions of Florida H.B. 1771, Section 1, Paragraph 17,130 of the Florida Securities and Investors Act, and all regulations thereunder relating to issuers doing business with Cuba.

Appears in 1 contract

Samples: Underwriting Agreement (Developers Diversified Realty Corp)

Common use of Covenants and Agreements of the Company Clause in Contracts