Covenants of the Company and the Guarantor. The Company and the Guarantor jointly and severally covenant with each Underwriter as follows: (a) The Company and the Guarantor have filed or will file each Statutory Prospectus (including the Prospectus) pursuant to and in accordance with Rule 424(b). The Company and the Guarantor have complied and will comply with Rule 433. (b) The Company or the Guarantor will promptly advise the Underwriters of any proposal to amend or supplement the Registration Statement or any Statutory Prospectus at any time and will offer the Underwriters a reasonable opportunity to comment on any such amendment or supplement; and the Company or the Guarantor will also advise the Underwriters promptly of (i) the filing of any such amendment or supplement, (ii) any request by the Commission or its staff for any amendment to the Registration Statement, for any supplement to any Statutory Prospectus or for any additional information, (iii) the institution by the Commission of any stop order proceedings in respect of the Registration Statement or the threatening of any proceeding for that purpose, and (iv) the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities in any jurisdiction or the institution or threatening of any proceedings for such purpose. Each of the Company and the Guarantor will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof. (c) Upon request, to furnish to the Underwriters, without charge, a signed copy of the Registration Statement (including exhibits thereto) and to furnish to the Underwriters in New York City, without charge, promptly following the date of this Agreement, as many copies of the Prospectus and any supplements and amendments thereto or to the Registration Statement as the Underwriters may reasonably request. (d) To furnish to the Underwriters a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and the Guarantor and not to use or refer to any proposed free writing prospectus to which you reasonably object. (e) Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder. (f) If the General Disclosure Package is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the General Disclosure Package conflicts with the information contained in the Registration Statement then on file, or if, in the reasonable opinion of counsel for the Underwriters, it is necessary to amend or supplement the General Disclosure Package to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the General Disclosure Package so that the statements in the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances under which they were made when delivered to a prospective purchaser, be misleading or so that the General Disclosure Package, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the General Disclosure Package, as amended or supplemented, will comply with applicable law. (g) If, during such period after the first date of the public offering of the Securities as in the reasonable opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Guarantor) to which Securities may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law. (h) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request. (i) To make generally available to the Guarantor’s shareholders and to you as soon as practicable an earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Guarantor occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder. (j) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company and the Guarantor jointly and severally agree to pay or cause to be paid all reasonable expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s and the Guarantor’s counsel and the Guarantor’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the General Disclosure Package, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company or the Guarantor and amendments and supplements to any of the foregoing, including the filing fees payable to the Commission relating to the Securities (within the time required by Rule 456(b)(1), if applicable), all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or legal investment memorandum in connection with the offer and sale of the Securities under state securities laws and all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(h) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky or legal investment memorandum, (iv) all filing fees and the reasonable fees and disbursements of counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Securities by the Financial Industry Regulatory Authority, (v) the cost of printing certificates representing the Securities, (vi) the costs and charges of any trustee or depositary, (vii) the costs and expenses of the Company and the Guarantor relating to investor presentations on any “road show,” if any, undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantor, travel and lodging expenses of the representatives and officers of the Company and the Guarantor and any such consultants, and one-half of the cost of any aircraft chartered in connection with the road show, and (viii) all other costs and expenses incident to the performance of the obligations of the Company and the Guarantor hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 7 entitled “Indemnity and Contribution,” and the last paragraph of Section 9 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel and any advertising expenses connected with any offers they may make. (k) Each of the Company and the Guarantor represents and agrees that, unless it obtains the prior consent of each Underwriter, and each Underwriter agrees that, unless it obtains the prior consent of the Company and the Guarantor, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Guarantor and each Underwriter, including those identified on Schedule I hereto, is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Company and the Guarantor represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and has complied and will comply with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. (l) To prepare a final term sheet relating to the offering of the Securities, containing information that describes the final terms of the Securities and any other information agreed to by the Company, the Guarantor and the Underwriters and substantially in the form attached as Exhibit A hereto, and will file such final term sheet within the period required by Rule 433(d)(5)(ii). Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. Each of the Company and the Guarantor also consents to the use by the Underwriters of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company and the Guarantor contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement.
Appears in 1 contract
Samples: Underwriting Agreement (Bungeltd)
Covenants of the Company and the Guarantor. The Company and the Guarantor jointly and severally covenant with each Underwriter as follows:
(a) The Company and the Guarantor have filed or will file each Statutory Prospectus (including the Prospectus) pursuant to and in accordance with Rule 424(b). The Company and the Guarantor have complied and will comply with Rule 433.
(b) The Company or the Guarantor will promptly advise the Underwriters of any proposal to amend or supplement the Registration Statement or any Statutory Prospectus at any time and will offer the Underwriters a reasonable opportunity to comment on any such amendment or supplement; and the Company or the Guarantor will also advise the Underwriters promptly of (i) the filing of any such amendment or supplement, (ii) any request by the Commission or its staff for any amendment to the Registration Statement, for any supplement to any Statutory Prospectus or for any additional information, (iii) the institution by the Commission of any stop order proceedings in respect of the Registration Statement or the threatening of any proceeding for that purpose, and (iv) the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities in any jurisdiction or the institution or threatening of any proceedings for such purpose. Each of the Company and the Guarantor will use its best efforts to prevent Guarantor, jointly and severally, covenants and agrees with the issuance of any such stop order or Initial Purchasers as follows:
a. To advise the suspension of any such qualification Initial Purchasers promptly and, if issuedrequested by the Initial Purchasers, to obtain as soon as possible the withdrawal thereof.
confirm such advice in writing, (ci) Upon request, to furnish to the Underwriters, without charge, a signed copy after it receives notice of the Registration Statement (including exhibits thereto) and to furnish to issuance by any state securities commission, of any stop order suspending the Underwriters qualification or exemption from qualification of any Notes for offering or sale in New York City, without charge, promptly following the date of this Agreement, as many copies of the Prospectus and any supplements and amendments thereto or to the Registration Statement as the Underwriters may reasonably request.
(d) To furnish to the Underwriters a copy of each proposed free writing prospectus to be prepared by or on behalf of, used byjurisdiction, or referred to the initiation of any proceeding for such purpose by any state securities commission or other regulatory authority and (ii) during the Company and the Guarantor and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(e) Not to take any action that would result time in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(f) If the General Disclosure Package is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the General Disclosure Package conflicts with the information contained in the Registration Statement then on file, or if, in the reasonable opinion of counsel for the Underwriters, it is necessary to amend or supplement the General Disclosure Package to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the General Disclosure Package so that the statements in the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances under which they were made when delivered to a prospective purchaser, be misleading or so that the General Disclosure Package, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the General Disclosure Package, as amended or supplemented, will comply with applicable law.
(g) If, during such period after the first date of the public offering of the Securities as in the reasonable opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in rule 173(a) of the Securities Act) Offering Memorandum is required by law to be delivered in connection with sales by an Underwriter or dealerExempt Resales, of the happening of any event shall occur that makes any statement of a material fact made in the Preliminary Offering Memorandum, as then amended or condition exist supplemented, or the Offering Memorandum, as a result then amended or supplemented, untrue or that requires the making of which it is necessary any additions to amend or supplement changes in the Prospectus Preliminary Offering Memorandum, as then amended or supplemented, or the Offering Memorandum in order to make the statements therein, in the light of the circumstances when under which they are made, not misleading. Each of the Prospectus Company and the Guarantor shall use its best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any Notes (including the Guarantee) under any state securities or Blue Sky laws and, if at any time any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any Notes under any state securities or Blue Sky laws, each of the Company and the Guarantor shall use its best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
b. To promptly deliver to the Initial Purchasers such number of copies of the Offering Memorandum and all amendments of and supplements thereto as the Initial Purchasers may reasonably request. The Company and the Guarantor consents to the use of the Preliminary Offering Memorandum up to the time at which the Offering Memorandum is available and the Offering Memorandum, and any amendments and supplements thereto, by the Initial Purchasers in connection with Exempt Resales.
c. Not to amend or supplement the Preliminary Offering Memorandum or the Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised thereof and shall have consented to or not have reasonably objected thereto in writing within a reasonable time after being furnished a copy thereof. Each of the Company and the Guarantor shall promptly prepare, upon the Initial Purchasers' request, any amendment or supplement to the Offering Memorandum that the Initial Purchasers believe reasonably necessary or advisable in connection with Exempt Resales.
d. If, after the date hereof and prior to consummation of any Exempt Resale, any event shall occur as a result of which, in the judgment of either the Company or the Guarantor or in lieu thereof the notice referred reasonable judgment of counsel to in Rule 173(a) the Initial Purchasers, it becomes necessary to amend or supplement the Preliminary Offering Memorandum (prior to the availability of the Securities ActOffering Memorandum) or Offering Memorandum in order to make the statements therein, in the light of the circumstances existing when such Preliminary Offering Memorandum or Offering Memorandum is delivered to an Eligible Purchaser which is a prospective purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, if it is necessary to amend or supplement the Prospectus Preliminary Offering Memorandum (prior to the availability of the Offering Memorandum) or Offering Memorandum to comply with applicable law, (i) to notify the Initial Purchasers and (ii) forthwith to prepare, file with the Commission and furnish, at its own expense, prepare an appropriate amendment or supplement to the Underwriters and to the dealers (whose names and addresses you will furnish to the Guarantor) to which Securities may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments such Preliminary Offering Memorandum or supplements to the Prospectus Offering Memorandum so that the statements in the Prospectus therein as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) it is delivered to a purchaserso delivered, be misleading misleading, or so that the Prospectus, as amended such Preliminary Offering Memorandum or supplemented, Offering Memorandum will comply with applicable law.
(h) To e. The Company and the Guarantor will endeavor in good faith, in cooperation with the Initial Purchasers, to qualify the Securities Notes for offer offering and sale under the securities laws relating to the offering or Blue Sky laws sale of the Notes in such jurisdictions as you shall reasonably request.
(i) To make generally available to the Guarantor’s shareholders Initial Purchasers may designate and to you maintain such qualification in effect for so long as soon as practicable an earnings statement covering a period of at least twelve months beginning with required for the first fiscal quarter of the Guarantor occurring after the date of this Agreement which distribution thereof; except that in no event shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(j) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company and the Guarantor jointly and severally agree to pay or cause to be paid all reasonable expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s and the Guarantor’s counsel and the Guarantor’s accountants obligated in connection with therewith to qualify as a foreign corporation or to execute a general consent to service of process.
f. The Company will apply the registration and delivery of proceeds from the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the General Disclosure Package, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company or the Guarantor and amendments and supplements to any of the foregoing, including the filing fees payable to the Commission relating to the Securities (within the time required by Rule 456(b)(1), if applicable), all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or legal investment memorandum in connection with the offer and sale of the Securities Series A Notes as set forth under state securities laws the caption "Use of Proceeds" in the Offering Memorandum, subject to such procedural modifications that are permitted under the Cash Collateral and all expenses Disbursement Agreement (as defined in connection the Indenture). The Company will comply with the qualification provisions of the Securities for offer and sale under state securities laws as provided in Section 6(h) hereof, including filing fees and the reasonable fees and disbursements Collateral Documents concerning disbursement of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky or legal investment memorandum, (iv) all filing fees and the reasonable fees and disbursements of counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Securities by the Financial Industry Regulatory Authority, (v) the cost of printing certificates representing the Securities, (vi) the costs and charges of any trustee or depositary, (vii) the costs and expenses of the Company and the Guarantor relating to investor presentations on any “road show,” if any, undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantor, travel and lodging expenses of the representatives and officers of the Company and the Guarantor and any such consultants, and one-half of the cost of any aircraft chartered in connection with the road show, and (viii) all other costs and expenses incident to the performance of the obligations of the Company and the Guarantor hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 7 entitled “Indemnity and Contribution,” and the last paragraph of Section 9 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel and any advertising expenses connected with any offers they may makefunds.
(k) g. Each of the Company and the Guarantor represents will use its best efforts to cause the Notes to be designated Private Offerings, Resales and agrees thatTrading through Automated Linkages ("PORTAL") market securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, unless it obtains Inc., relating to trading in the prior consent PORTAL market.
h. The Company and the Guarantor will comply with all of the agreements (to the extent each Underwriter, and each Underwriter agrees that, unless it obtains the prior consent of the Company and the GuarantorGuarantor is a party thereto) set forth in the Registration Rights Agreement, it has not made the Indenture, the Collateral Documents and will not make any offer in the representation letter of the Company to The Depository Trust Company ("DTC") relating to the Securities that would constitute an Issuer Free Writing Prospectusapproval of the Notes by DTC for "book-entry" transfer.
i. During the period of 90 days from the date hereof, the Company will not, withoutprior written consent of the Initial Purchasers or as permitted in the Indenture, issue, sell, offer or contract to sell, grant any option for the sale of, or that would otherwise constitute a “free writing prospectus,” dispose of, directly or indirectly, any debt securities in any such case for cash, other than the Company's sale of Notes hereunder.
j. None of the Company, the Guarantor, their respective affiliates (as defined in Rule 405, required 501(b) of the Securities Act) or any person acting on their behalf (other than the Initial Purchasers and their affiliates) will (i) distribute prior to be filed the Closing Date any offering material in connection with the Commissionoffering or sale of the Notes other than the Preliminary Offering Memorandum and the Offering Memorandum and any amendments and supplements to the Offering Memorandum prepared in compliance with Section 5(c) hereof or (ii) solicit any offer to buy or offer or sell the Notes by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
k. None of the Company, the Guarantor or any of their respective affiliates (as defined in Rule 501(b) of the Securities Act) or any person acting on their behalf will offer, sell or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) of the Company in a manner that would require the registration of the Series A Notes under the Securities Act.
1. Any such free writing prospectus consented During the period from the Closing Date to three years after the Closing Date, the Company will not, and will not permit any of its "affiliates" (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been reacquired by them, except for Notes purchased by the Company or any of its affiliates and resold in a transaction registered under the Guarantor and each Underwriter, including those identified on Schedule I hereto, is hereinafter referred to as a “Permitted Free Writing ProspectusSecurities Act or are exempt from such registration requirements under the Securities Act.”
m. Each of the Company and the Guarantor represents that it has treated will, so long as the Notes are outstanding and agrees that it will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectusare "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, either (i) file reports and has complied and will comply other information with the requirements Commission under Section 13 or 15(d) of Rules 164 the Exchange Act, or (ii) in the event it is not subject to Section 13 or 15(d) of the Exchange Act, make available to holders of the Notes and 433 applicable prospective purchasers of the Notes designated by such holders, upon request of such prospective purchasers, the information required to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keepingbe delivered pursuant to Rule 144A(d)(4) under the Securities Act to permit compliance with Rule 144A in connection with resales of the Notes.
(l) To prepare a final term sheet relating to the offering of the Securities, containing information that describes the final terms of the Securities and any other information agreed to by the Company, the Guarantor and the Underwriters and substantially in the form attached as Exhibit A hereto, and will file such final term sheet within the period required by Rule 433(d)(5)(ii). Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. n. Each of the Company and the Guarantor also consents will use its best efforts to cause the Notes to be eligible for clearance and settlement through the DTC.
o. Each of the Notes will bear the legend contained in "Notice to Investors" in the Offering Memorandum for the time period and upon the other terms stated therein, except after such Note is resold pursuant to a registration statement effective under the Securities Act.
p. To cause the Exchange Offer to be made in accordance with and subject to the use by terms set forth in the Underwriters Registration Rights Agreement.
q. Not to insist upon, plead or in any manner whatsoever claim or take the benefit or advantage of a free writing prospectus any usury law wherever enacted, now or at any time hereafter in force, that contains only (i)(x) information describing may affect the preliminary terms covenants or the performance of the Securities Indenture.
r. Not to (i) take, directly or their offering indirectly, any action designed to cause or (y) information result in, or that describes has constituted or which might reasonably be expected to constitute, the final terms stabilization or manipulation of the Securities or their offering and that is included in the final term sheet price of any security of the Company and or the Guarantor contemplated in to facilitate the first sentence sale or resale of this subsection any of the Series A Notes or (ii) sell, bid for, purchase or pay anyone other information that is not “issuer information,” as defined in Rule 433than the Initial Purchasers any compensation for soliciting purchases of, it being understood that any such free writing prospectus referred of the Series A Notes or pay or agree to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus pay to any person any compensation for purposes soliciting another to purchase any other securities of this Agreementthe Company.
Appears in 1 contract
Samples: Purchase Agreement (Casino Magic of Louisiana Corp)
Covenants of the Company and the Guarantor. The Company and the Guarantor ------------------------------------------ Guarantor, jointly and severally severally, covenant and agree with each Underwriter as followsof the Underwriters that:
(a) The Immediately following the execution of this Agreement, the Company and the Guarantor have filed or will file prepare a Prospectus Supplement that complies with the Act and the Regulations and that sets forth the principal amount of the Securities and their material terms, the name of each Statutory Prospectus (including Underwriter participating in the Prospectus) pursuant offering and the principal amount of the Securities that each severally has agreed to purchase, the price at which the Securities are to be purchased by the Underwriters from the Company, any initial public offering price, any selling concession and reallowance and any delayed delivery arrangements, and such other information as you, the Company and the Guarantor deem appropriate in accordance connection with Rule 424(b)the offering of the Securities. The Company and the Guarantor have complied and will comply with promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 433424 under the Act.
(b) The During the period when the Prospectus is required by the Act to be delivered in connection with the sale of the Securities, the Company and the Guarantor will, subject to Section 6(c) hereof, file promptly all documents required to be filed with the Commission pursuant to Section 13 or 14 of the Exchange Act.
(c) During the period when the Prospectus is required by the Act to be delivered in connection with the sale of the Securities, the Company and the Guarantor will promptly advise the Underwriters inform you of any proposal their intention to amend or supplement the Registration Statement or any Statutory Prospectus at any time and will offer the Underwriters a reasonable opportunity to comment on any such amendment or supplement; and the Company or the Guarantor will also advise the Underwriters promptly of (i) the filing of any such amendment or supplement, (ii) any request by the Commission or its staff for file any amendment to the Registration Statement, for any supplement to any Statutory the Prospectus or for any additional informationdocument that would as a result thereof be incorporated by reference in the Prospectus; will furnish you with copies of any such amendment, supplement or other document a reasonable time in advance of filing and will not file any such amendment, supplement or other document in a form to which you shall reasonably object.
(iiid) The Company and the Guarantor will advise the Representatives, promptly after receiving notice or obtaining knowledge thereof, of (i) the institution issuance by the Commission of any stop order proceedings in respect suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any document incorporated by reference in the threatening Registration Statement or the Prospectus or any amendment or supplement thereto or any order preventing or suspending the use of any proceeding for that purposePreliminary Prospectus or the Prospectus or any amendment or supplement thereto, and (ivii) the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for offering or sale in any jurisdiction jurisdiction, (iii) the institution, threatening or contemplation of any proceeding for any such purpose or (iv) any request made by the Commission for amending the Registration Statement, for amending or supplementing any Preliminary Prospectus or the institution Prospectus or threatening of any proceedings for such purposeadditional information. Each of the The Company and the Guarantor will use its best all commercially reasonable efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if any such stop order is issued, to obtain as soon as possible the withdrawal thereofthereof as promptly as possible.
(ce) Upon request, The Company and the Guarantor will use all commercially reasonable efforts to furnish to arrange for the Underwriters, without charge, a signed copy qualification of the Registration Statement (including exhibits thereto) Securities for offering and to furnish to sale under the Underwriters in New York City, without charge, promptly following the date securities or blue sky laws of this Agreement, as many copies of the Prospectus and any supplements and amendments thereto or to the Registration Statement such jurisdictions as the Underwriters may reasonably request.
(d) To furnish designate and to continue such qualifications in effect for as long as may be necessary to complete the Underwriters a copy distribution of each proposed free writing prospectus to be prepared by or on behalf ofthe Securities, used byprovided, or referred to by however, that in connection therewith the Company and the Guarantor and shall not to use or refer to any proposed free writing prospectus to which you reasonably object.
(e) Not to take any action that would result in an Underwriter or the Company being be required to file with the Commission pursuant qualify as a foreign corporation or a dealer in securities, to Rule 433(d) under the Securities Act execute a free writing prospectus prepared by general consent to service of process or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereundersubject itself to taxation in any jurisdiction.
(f) If If, at any time prior to the General Disclosure Package is being used later of (i) the final date when a Prospectus relating to solicit offers to buy the Securities at a time when is required to be delivered under the Prospectus is not yet available to prospective purchasers and Act or (ii) the Closing Date, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist occurs as a result of which the General Disclosure Package conflicts with the information contained in the Registration Statement then on file, or if, in the reasonable opinion of counsel for the Underwriters, it is necessary to amend or supplement the General Disclosure Package to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the General Disclosure Package so that the statements in the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances under which they were made when delivered to a prospective purchaser, be misleading or so that the General Disclosure PackageProspectus, as then amended or supplemented, will no longer conflict with the Registration Statement, would include any untrue statement of a material fact or so that the General Disclosure Package, as amended or supplemented, will comply with applicable law.
(g) If, during such period after the first date of the public offering of the Securities as in the reasonable opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred omit to in rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as state a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel if for the Underwriters, any other reason it is necessary at any time to amend or supplement the Prospectus to comply with applicable lawthe Act, forthwith the Exchange Act or the Trust Indenture Act or the respective rules or regulations of the Commission thereunder, the Company and the Guarantor will promptly notify the Underwriters thereof and, subject to prepareSection 6(c) hereof, will prepare and file with the Commission and furnishCommission, at its own the Company's and the Guarantor's expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance.
(g) The Company and the Guarantor will, without charge, provide (i) to the Underwriters and to counsel for the dealers (whose names and addresses you will furnish Underwriters a signed copy of the registration statement originally filed with respect to the GuarantorSecurities and each amendment thereto (in each case including exhibits thereto), (ii) to which each other Underwriter a conformed copy of such registration statement and each amendment thereto (in each case without exhibits thereto) and (iii) so long as a Prospectus relating to the Securities is required to be delivered under the Act, as many copies of each Preliminary Prospectus or the Prospectus or any amendment or supplement thereto as the Underwriters may have been sold by you reasonably request; without limiting the application of clause (iii) of this sentence, the Company and the Guarantor, not later than 6:00 PM, New York City time, on behalf the business day following the date of determination of the Underwriters and to any other dealers upon requestpublic offering price, either amendments or supplements will deliver to the Prospectus so that the statements in Underwriters, without charge, as many copies of the Prospectus and any amendment or supplement thereto as so amended or supplemented the Underwriters may reasonably request for purposes of confirming orders that are expected to settle on the Closing Date. The copies of any Preliminary Prospectus and Prospectus furnished to the Underwriters will notbe identical to the electronically transmitted copies filed with the Commission pursuant to XXXXX, in except to the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.extent permitted by Regulation S-T.
(h) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions The Guarantor, as you shall reasonably request.
(i) To soon as practicable, will make generally available to the Guarantor’s shareholders its security holders and to you as soon as practicable an the Underwriters a consolidated earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Guarantor occurring after the date of this Agreement which shall satisfy and its subsidiaries that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.
(i) The Company will apply the rules and regulations net proceeds from the sale of the Commission thereunderSecurities as set forth in the Prospectus under the heading "Use of Proceeds".
(j) Whether The Company and the Guarantor will not, directly or not indirectly, without the transactions contemplated in this Agreement prior written consent of Prudential Securities Incorporated, on behalf of the Underwriters, offer, sell, offer to sell, contract to sell, grant any option to purchase or otherwise transfer or dispose (or announce any offer, transfer, offer of sale, contract of sale, grant of any option to purchase or other sale or disposition) of any debt securities of the Company or the Guarantor that are consummated or this Agreement is terminated, substantially similar to the Securities during the period commencing on the date hereof and terminating on the earlier of (a) the Closing Date and (b) the date of notice to the Company and the Guarantor jointly by the Underwriters of the termination of trading restrictions with respect to the Securities, except pursuant to this Agreement.
(k) The Company and severally the Guarantor will not, directly or indirectly, (i) take any action designed to cause or to result in, or that has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company or the Guarantor to facilitate the sale or resale of the Securities or (ii) except pursuant to this Agreement (A) sell, bid for, purchase, or pay anyone any compensation for soliciting purchases of, the Securities or (B) pay or agree to pay or cause to be paid all reasonable expenses incident any person any compensation for soliciting another to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses purchase any other securities of the Company’s Company or the Guarantor.
(l) The Company and the Guarantor’s counsel Guarantor will, jointly and severally, indemnify and hold harmless the Guarantor’s accountants in connection with Underwriters against any documentary, stamp or similar issue tax, including any interest and penalties, on the registration creation, issue and sale of the Securities and on the execution and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the General Disclosure Package, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred this Agreement. All payments to be made by the Company or the Guarantor and amendments and supplements to any of the foregoing, including the filing fees payable to the Commission relating to the Securities (within the time required by Rule 456(b)(1), if applicable), all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer hereunder shall be made without withholding or other taxes payable thereon, (iii) the cost of printing deduction for or producing any Blue Sky or legal investment memorandum in connection with the offer and sale of the Securities under state securities laws and all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(h) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky or legal investment memorandum, (iv) all filing fees and the reasonable fees and disbursements of counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Securities by the Financial Industry Regulatory Authority, (v) the cost of printing certificates representing the Securities, (vi) the costs and charges on account of any trustee present or depositaryfuture taxes, (vii) the costs and expenses of duties or governmental charges whatsoever unless the Company and or the Guarantor relating is compelled by law to investor presentations on any “road show,” if anydeduct or withhold such taxes, undertaken in connection with the marketing of the offering of the Securitiesduties or charges. In that event, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantor, travel and lodging expenses of the representatives and officers of the Company and or the Guarantor and any shall pay such consultants, and one-half of additional amounts as may be necessary in order that the cost of any aircraft chartered in connection with net amounts received after such withholding or deduction shall equal the road show, and (viii) all other costs and expenses incident to the performance of the obligations of the Company and the Guarantor hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 7 entitled “Indemnity and Contribution,” and the last paragraph of Section 9 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel and any advertising expenses connected with any offers they may make.
(k) Each of the Company and the Guarantor represents and agrees that, unless it obtains the prior consent of each Underwriter, and each Underwriter agrees that, unless it obtains the prior consent of the Company and the Guarantor, it has not made and will not make any offer relating to the Securities amounts that would constitute an Issuer Free Writing Prospectus, have been received if no withholding or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Guarantor and each Underwriter, including those identified on Schedule I hereto, is hereinafter referred to as a “Permitted Free Writing Prospectusdeduction had been made.” Each of the Company and the Guarantor represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and has complied and will comply with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping.
(l) To prepare a final term sheet relating to the offering of the Securities, containing information that describes the final terms of the Securities and any other information agreed to by the Company, the Guarantor and the Underwriters and substantially in the form attached as Exhibit A hereto, and will file such final term sheet within the period required by Rule 433(d)(5)(ii). Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. Each of the Company and the Guarantor also consents to the use by the Underwriters of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company and the Guarantor contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement.
Appears in 1 contract
Covenants of the Company and the Guarantor. The Company and the Guarantor jointly and severally covenant and agree with each Underwriter as followsthat:
(a) The Company (i) will prepare the Prospectus in a form approved by the Representatives and file the Guarantor have filed or will file each Statutory Prospectus (including the Prospectus) pursuant to and in accordance with Rule 424(b). The Company ) of the Rules and Regulations within the Guarantor have complied and time period prescribed by such Rule; (ii) will comply with Rule 433.
(b) The Company or the Guarantor will promptly advise the Underwriters of not file any proposal to amend amendment or supplement to the Registration Statement or the Prospectus or file any Statutory Prospectus at any time and will offer document under the Exchange Act before the termination of the offering of the Notes by the Underwriters a if such document would be deemed to be incorporated by reference into the Prospectus, which filing is not consented to by the Representatives after reasonable opportunity notice thereof (such consent not to comment on be unreasonably withheld or delayed); (iii) will advise the Representatives, promptly after it receives notice thereof, of the time when any such amendment or supplement; and the Company or the Guarantor will also advise the Underwriters promptly of (i) the filing of any such amendment or supplement, (ii) any request by the Commission or its staff for any amendment supplement to the Registration Statement, for any supplement to any Statutory the most recent Preliminary Prospectus or for any additional informationthe Prospectus has been filed and will furnish the Representatives with copies thereof; (iv) will prepare the Final Term Sheet, substantially in the form of Schedule III hereto and approved by the Representatives and file the Final Term Sheet pursuant to Rule 433(d) of the Rules and Regulations within the time period prescribed by such Rule; (iiiv) will advise the institution Representatives promptly after it receives notice thereof, of the issuance by the Commission or any state or other regulatory body of any stop order proceedings in respect or any order suspending the effectiveness of the Registration Statement Statement, suspending or preventing the threatening use of any proceeding for that purposePreliminary Prospectus, and (iv) the receipt by the Company of Prospectus or any notification with respect to the suspension of Issuer Free Writing Prospectus or suspending the qualification of the Securities Notes for offering or sale in any jurisdiction or jurisdiction, of the institution initiation or threatening of any proceedings for any such purpose. Each purpose or pursuant to Section 8A of the Securities Act, of receipt by the Company from the Commission of any notice of objection to the use of the Registration Statement or any post-effective amendment thereto or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and the Guarantor (vi) will use its best efforts to prevent the issuance of any such stop order or the suspension of other such order or any such qualification notice of objection and, if issueda stop order or other such order is issued or any such notice of objection is received, to obtain as soon as possible the lifting or withdrawal thereof.
(b) The Company will prepare and file with the Commission, promptly upon the request of the Representatives, any amendments or supplements to the Registration Statement, the Disclosure Package or the Prospectus which, in the opinion of the Representatives, may be necessary or advisable in connection with the offering of the Notes.
(c) Upon request, to The Company will furnish to each of the Underwriters, without charge, a signed copy Representatives and to counsel for the Underwriters such number of conformed copies of the Registration Statement Statement, as originally filed and each amendment thereto (including excluding exhibits thereto) and to furnish to the Underwriters in New York City, without charge, promptly following the date of other than this Agreement), as many copies of any Preliminary Prospectus, the Final Term Sheet and any other Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements to any supplements of such documents (including any document filed under the Exchange Act and amendments thereto or deemed to be incorporated by reference in the Registration Statement Statement, any Preliminary Prospectus or the Prospectus), in each case as soon as available and in such quantities as the Underwriters Representatives may from time to time reasonably request.
(d) To furnish During the period in which the Prospectus relating to the Underwriters a copy Notes (or in lieu thereof, the notice referred to in Rule 173(a) of each proposed free writing prospectus the Rules and Regulations) is required to be prepared by or on behalf of, used by, or referred to by the Company and the Guarantor and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(e) Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) delivered under the Securities Act a free writing prospectus prepared Act, the Company will comply with all requirements imposed upon it by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(f) If the General Disclosure Package is being used to solicit offers to buy the Securities at a Act and by the Rules and Regulations, as from time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist time in force, so far as a result of which it is necessary to amend permit the continuance of sales of or supplement the General Disclosure Package in order to make the statements therein, dealings in the light Notes as contemplated by the provisions of this Agreement and by the circumstances, not misleading, or if Prospectus. If during such period any event shall occur or condition exist occurs as a result of which the General Disclosure Package conflicts with or the information contained in the Registration Statement Prospectus as then on file, or if, in the reasonable opinion of counsel for the Underwriters, it is necessary to amend or supplement the General Disclosure Package to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the General Disclosure Package so that the statements in the General Disclosure Package as so amended or supplemented will not, in the light would include an untrue statement of the circumstances under which they were made when delivered a material fact or omit to state a prospective purchaser, be misleading or so that the General Disclosure Package, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the General Disclosure Package, as amended or supplemented, will comply with applicable law.
(g) If, during such period after the first date of the public offering of the Securities as in the reasonable opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaserthen existing, not misleading, or if, in the opinion of counsel for the Underwriters, if during such period it is necessary to amend the Registration Statement or amend or supplement the Disclosure Package or the Prospectus or file any document to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Guarantor) to which Securities may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act, the Company will promptly notify the Representatives and will, subject to Section 4(a) is delivered to a purchaserhereof, be misleading amend the Registration Statement, amend or so that supplement the Disclosure Package or the Prospectus, as amended the case may be, or supplementedfile any document (in each case, at the expense of the Company) so as to correct such statement or omission or to effect such compliance, and will comply with applicable law.
(h) To endeavor furnish without charge to qualify each Underwriter as many written and electronic copies of any such amendment or supplement as the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall Representatives may from time to time reasonably request.
(ie) To As soon as practicable, the Company will make generally available to its security holders and the Guarantor’s shareholders and to you as soon as practicable Underwriters an earnings statement covering a period of at least twelve months beginning with satisfying the first fiscal quarter of the Guarantor occurring after the date of this Agreement which shall satisfy the provisions requirements of Section 11(a) of the Securities Act and the rules and regulations Rule 158 of the Commission thereunderRules and Regulations.
(jf) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the The Company and the Guarantor jointly and severally agree agree, whether or not this Agreement is terminated or the sale of the Notes to the Underwriters is consummated, to pay all fees, expenses, costs and charges in connection with: (i) the preparation, printing, filing, registration, delivery and shipping of the Registration Statement (including any exhibits thereto), any Preliminary Prospectus, any Issuer Free Writing Prospectus, the Prospectus and any amendments or cause supplements thereto; (ii) the printing, producing, copying and delivering this Agreement, the Indenture, closing documents (including any compilations thereof) and any other agreements, memoranda, correspondence and other documents printed and delivered in connection with the offering, purchase, sale and delivery of the Notes; (iii) the services of the Company’s independent registered public accounting firm; (iv) the services of the Company’s counsel;
(v) the qualification of the Notes under the securities laws of the several jurisdictions as provided in Section 4(l) hereof and the preparation, printing and distribution of a Blue Sky Memorandum (including the related fees and expenses of counsel to be paid all reasonable expenses the Underwriters); (vi) any rating of the Notes by rating agencies; (vii) the services of the Trustee and any agent of the Trustee (including the fees and disbursements of counsel for the Trustee); (viii) any “road show” or other investor presentations relating to the offering of the Notes (including, without limitation, for meetings and travel); and (ix) otherwise incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s and the Guarantor’s counsel and the Guarantor’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the General Disclosure Package, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company or the Guarantor and amendments and supplements to any of the foregoing, including the filing fees payable to the Commission relating to the Securities (within the time required by Rule 456(b)(1), if applicable), all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or legal investment memorandum in connection with the offer and sale of the Securities under state securities laws and all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(h) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky or legal investment memorandum, (iv) all filing fees and the reasonable fees and disbursements of counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Securities by the Financial Industry Regulatory Authority, (v) the cost of printing certificates representing the Securities, (vi) the costs and charges of any trustee or depositary, (vii) the costs and expenses of the Company and the Guarantor relating to investor presentations on any “road show,” if any, undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantor, travel and lodging expenses of the representatives and officers of the Company and the Guarantor and any such consultants, and one-half of the cost of any aircraft chartered in connection with the road show, and (viii) all other costs and expenses incident to the performance of the obligations of the Company and the Guarantor hereunder for which provision is not otherwise made in this SectionSection 4(f). It is understood, however, that that, except as provided in this Section, Section 4(f) or Sections 7 entitled “Indemnity and Contribution,” and the last paragraph of Section 9 belowhereof, the Underwriters will pay all of their own costs and expenses, including the fees and disbursements expenses of their counsel to the Underwriters and any advertising expenses connected incurred in connection with the offering of the Notes. If the sale of the Notes provided for herein is not consummated by reason of acts of the Company or changes in circumstances of the Company pursuant to Section 9 of this Agreement, or by reason of any failure, refusal or inability on the part of the Company or the Guarantor to perform any agreement on its part to be performed or because any other condition of the Underwriters’ obligations hereunder is not fulfilled or if the Underwriters decline to purchase the Notes for any reason permitted under this Agreement (other than by reason of a default by any of the Underwriters pursuant to Section 8), the Company will reimburse the Underwriters for all reasonable out-of-pocket disbursements (including fees and expenses of counsel to the Underwriters) incurred by the Underwriters in connection with any offers they may makeinvestigation or preparation made by them in respect of the marketing of the Notes or in contemplation of the performance by them of their obligations hereunder.
(kg) Each Until completion of the Company and the Guarantor represents and agrees that, unless it obtains the prior consent of each Underwriter, and each Underwriter agrees that, unless it obtains the prior consent distribution of the Notes, the Company will timely file all reports, documents and the Guarantor, it has not made and will not make any offer relating amendments to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, previously filed documents required to be filed with the Commission. Any such free writing prospectus consented by it pursuant to by the Company and the Guarantor and each UnderwriterSection 12, including those identified on Schedule I hereto13(a), is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each 13(c), 14 or 15(d) of the Company and the Guarantor represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and has complied and will comply with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keepingExchange Act.
(l) To prepare a final term sheet relating to the offering of the Securities, containing information that describes the final terms of the Securities and any other information agreed to by the Company, the Guarantor and the Underwriters and substantially in the form attached as Exhibit A hereto, and will file such final term sheet within the period required by Rule 433(d)(5)(ii). Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. Each of the Company and the Guarantor also consents to the use by the Underwriters of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company and the Guarantor contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement.
Appears in 1 contract
Covenants of the Company and the Guarantor. The Company and the Guarantor Guarantor, jointly and severally severally, covenant with each Underwriter as follows:
(a) The Company and the Guarantor have filed or will file each Statutory Prospectus (including the Prospectus) pursuant Guarantor, subject to and in accordance with Rule 424(bSection 3(b). The Company and the Guarantor have complied and , will comply with the requirements of Rule 433.
430A or Rule 434, as applicable, and will notify the Representatives immediately, and confirm the notice in writing, (bi) The Company when any post-effective amendment to the Registration Statement, shall become effective, (ii) of the mailing or the Guarantor will promptly advise delivery to the Underwriters Commission for filing of the Prospectus or any proposal amendment to amend or supplement the Registration Statement or any Statutory Prospectus at any time and will offer the Underwriters a reasonable opportunity to comment on any such amendment or supplement; and supplement to the Company Prospectus or any document to be filed pursuant to the Guarantor will also advise 1934 Act during any period when the Underwriters promptly Prospectus is required to be delivered under the 1933 Act, (iii) of (i) the filing receipt of any such amendment comments or supplementinquiries from the Commission relating to the Registration Statement or Prospectus, (iiiv) of any request by the Commission or its staff for any amendment to the Registration Statement, for Statement or any amendment or supplement to any Statutory the Prospectus or for any additional information, and (iiiv) of the institution issuance by the Commission of any stop order proceedings in respect suspending the effectiveness of the Registration Statement or the threatening of any proceeding for that purpose, and (iv) order preventing or suspending the receipt by the Company use of any notification with respect to preliminary prospectus or preliminary prospectus supplement, or of the suspension of the qualification of the Securities and the Guarantees for offering or sale in any jurisdiction jurisdiction, or of or the institution initiation or threatening of any proceedings for any of such purposepurposes. Each The Company and the Guarantor will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment. If the Company and the Guarantor elect to rely on Rule 434 under the 1933 Act Regulations, the Company and the Guarantor will prepare an "abbreviated term sheet" that complies with the requirements of Rule 434 under the 1933 Act Regulations. If the Company and the Guarantor elect not to rely on Rule 434, the Company and the Guarantor will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file or transmit for filing with the Commission such Prospectus in accordance with Rule 424(b) of the 1933 Act Regulations by the close of business in New York on the business day immediately succeeding the date hereof. If the Company and the Guarantor elect to rely on Rule 434, the Company and the Guarantor 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 Regulations in accordance with Rule 424(b) of the 1933 Act Regulations by the close of business in New York on the business day immediately succeeding the date hereof.
(b) The Company and the Guarantor will give the Representatives notice of their intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, (including any revised prospectus which the Company and the Guarantor propose for use its best efforts by the Underwriters in connection with the offering of the Securities which differs from the prospectus filed with the Commission pursuant to prevent Rule 424(b) of the issuance 1933 Act Regulations, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act Regulations, or any abbreviated term sheet prepared in reliance on Rule 434 of the 1933 Act Regulations), will furnish the Representatives with copies of any such stop order amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the suspension of case may be, and will not file any such qualification and, if issued, amendment or supplement or use any such prospectus to obtain as soon as possible which the withdrawal thereofRepresentatives or counsel for the Underwriters shall object.
(c) Upon request, The Company and the Guarantor have furnished or will deliver to furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and signed copies of all consents and certificates of experts, and will also deliver to the Representatives a signed conformed copy of the Registration Statement as originally filed and of each amendment thereto (including exhibits theretowithout exhibits) for each of the Underwriters. Copies of the Registration Statement and to furnish each amendment thereto furnished to the Underwriters in New York Citywill be identical to any electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(d) Xxx Company and the Guarantor will promptly deliver to each Underwriter, without charge, promptly following the date of this Agreement, as many copies of each preliminary prospectus and preliminary prospectus supplement as such Underwriter may reasonably request, and the Company and the Guarantor hereby consent to the use of such copies for purposes permitted by the 1933 Act. The Company and the Guarantor will furnish to each Underwriter, without charge, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, 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 or the 1934 Act or the 1934 Act Regulations.
(e) The Company and any supplements the Guarantor will comply with the 1933 Act and amendments thereto or the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Registration Statement and the Prospectus. If any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company and the Guarantor, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company and the Guarantor will promptly prepare and file with the Commission, subject to Section 3(b), such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement or the Prospectus comply with such requirements, and the Company and the Guarantor will furnish to the Underwriters such number of copies of such amendment or supplement as the Underwriters may reasonably request.
(df) To furnish to the Underwriters a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the The Company and the Guarantor and not to will use or refer to any proposed free writing prospectus to which you reasonably object.
(e) Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(f) If the General Disclosure Package is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the General Disclosure Package in order to make the statements thereintheir best efforts, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the General Disclosure Package conflicts cooperation with the information contained in the Registration Statement then on file, or if, in the reasonable opinion of counsel for the Underwriters, it is necessary to amend or supplement the General Disclosure Package to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the General Disclosure Package so that the statements in the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances under which they were made when delivered to a prospective purchaser, be misleading or so that the General Disclosure Package, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the General Disclosure Package, as amended or supplemented, will comply with applicable law.
(g) If, during such period after the first date of the public offering of the Securities as in the reasonable opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Guarantor) to which Securities may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(h) To endeavor to qualify the Securities for offer offering and sale under the applicable securities or Blue Sky laws of such states and other jurisdictions of the United States as you shall reasonably request.
(i) To make generally available to the Guarantor’s shareholders Representatives may designate and to you maintain such qualifications in effect for as soon long as practicable an earnings statement covering a period of at least twelve months beginning with may be required for the first fiscal quarter distribution of the Securities; provided, however, that neither the Company nor the Guarantor occurring after the date shall be obligated to file any general consent to service of this Agreement process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which shall satisfy the provisions it is not so qualified or to subject itself to taxation in respect of Section 11(a) of doing business in any jurisdiction in which it is not otherwise so subject. In each jurisdiction in which the Securities Act and the rules and regulations of the Commission thereunder.
(j) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminatedhave been so qualified, the Company and the Guarantor jointly will file such statements and severally agree reports as may be required by the laws of such jurisdiction to pay or cause to continue such qualification in effect for as long as may be paid all reasonable expenses incident required for the distribution of the Securities.
(g) The Guarantor and, to the performance extent separately required pursuant to Rule 158 under the 1933 Act Regulations, the Company will make generally available to its security holders as soon as practicable, but not later than 45 days after the close of its obligations under this Agreementthe period covered thereby, including: an earnings statement (iin form complying with the provisions of Rule 158) covering a twelve month period beginning not later than the fees, disbursements and expenses first day of the Company’s 's and the Guarantor’s counsel and 's fiscal quarter next following the Guarantor’s accountants "effective date" (as defined in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing Rule 158) of the Registration Statement, any preliminary prospectus, .
(h) Immediately following the General Disclosure Package, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company or the Guarantor and amendments and supplements to any of the foregoing, including the filing fees payable to the Commission relating to the Securities (within the time required by Rule 456(b)(1), if applicable), all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or legal investment memorandum in connection with the offer and sale of the Securities under state securities laws and all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(h) execution hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky or legal investment memorandum, (iv) all filing fees and the reasonable fees and disbursements of counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Securities by the Financial Industry Regulatory Authority, (v) the cost of printing certificates representing the Securities, (vi) the costs and charges of any trustee or depositary, (vii) the costs and expenses of the Company and the Guarantor relating to investor presentations will prepare a prospectus supplement, dated the date hereof (the "Prospectus Supplement"), containing such information as may be required by the 1933 Act or the 1933 Act Regulations and such other information as the Underwriters, the Company and the Guarantor deem appropriate, and will file or transmit for filing with the Commission copies of the Prospectus (including such Prospectus Supplement) in accordance with Rule 424(b) of the 1933 Act Regulations by the close of business in New York on any “road show,” the business day immediately succeeding the date hereof.
(i) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under "Use of Proceeds."
(j) The Company and the Guarantor shall comply with the "black-out" provisions, if any, undertaken set forth in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Schedule B hereto.
(k) The Company and the Guarantor, travel and lodging expenses of during the representatives and officers of period when the Company and Prospectus is required to be delivered under the Guarantor and any such consultants1933 Act or the 1934 Act, and one-half of the cost of any aircraft chartered in connection with the road show, and (viii) will file all other costs and expenses incident to the performance of the obligations of the Company and the Guarantor hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 7 entitled “Indemnity and Contribution,” and the last paragraph of Section 9 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel and any advertising expenses connected with any offers they may make.
(k) Each of the Company and the Guarantor represents and agrees that, unless it obtains the prior consent of each Underwriter, and each Underwriter agrees that, unless it obtains the prior consent of the Company and the Guarantor, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, documents required to be filed with the CommissionCommission pursuant to the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(l) The Company and the Guarantor will use their best efforts to effect the listing of the Securities on such securities exchanges or quotation systems (each, an "Exchange") as may be specified in Schedule B hereto. Any such free writing prospectus consented to by If an Exchange is specified in Schedule B hereto, the Company and the Guarantor confirm that they have made or have caused to be made on their behalf an application for the Securities to be listed on the Exchange. The Company and each Underwriter, including those identified on Schedule I hereto, is hereinafter referred the Guarantor will endeavor promptly to as a “Permitted Free Writing Prospectus.” Each of obtain such listing and for such purpose the Company and the Guarantor represents that it has treated and agrees that it will treat each Permitted Free Writing agree to deliver to the Exchange copies of the Prospectus as an Issuer Free Writing Prospectus, and has complied and will comply with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping.
(l) To prepare a final term sheet relating to the offering Securities and such other documents, information and undertakings as may be required for the purpose of obtaining and maintaining such listing. The Company and the Securities, containing information that describes Guarantor shall use their best efforts to maintain the final terms listing of the Securities and on the Exchange for so long as any other information Securities are outstanding, unless otherwise agreed to by the Company, the Guarantor and the Underwriters and substantially in the form attached as Exhibit A hereto, and will file such final term sheet within the period required by Rule 433(d)(5)(ii). Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. Each of the Company and the Guarantor also consents to the use by the Underwriters of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company and the Guarantor contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this AgreementRepresentatives.
Appears in 1 contract
Samples: Purchase Agreement (Countrywide Credit Industries Inc)
Covenants of the Company and the Guarantor. The Company and the Guarantor jointly and severally covenant and agree with each Underwriter as followsthat:
(a) The Company (i) will prepare the Prospectus in a form approved by the Representatives and file the Guarantor have filed or will file each Statutory Prospectus (including the Prospectus) pursuant to and in accordance with Rule 424(b). The Company ) of the Rules and Regulations within the Guarantor have complied and time period prescribed by such Rule; (ii) will comply with Rule 433.
(b) The Company or the Guarantor will promptly advise the Underwriters of not file any proposal to amend amendment or supplement to the Registration Statement or the Prospectus or file any Statutory Prospectus at any time and will offer document under the Exchange Act before the termination of the offering of the Notes by the Underwriters a if such document would be deemed to be incorporated by reference into the Prospectus, which filing is not consented to by the Representatives after reasonable opportunity notice thereof (such consent not to comment on be unreasonably withheld or delayed); (iii) will advise the Representatives, promptly after it receives notice thereof, of the time when any such amendment or supplement; and the Company or the Guarantor will also advise the Underwriters promptly of (i) the filing of any such amendment or supplement, (ii) any request by the Commission or its staff for any amendment supplement to the Registration Statement, for any supplement to any Statutory the most recent Preliminary Prospectus or for any additional informationthe Prospectus has been filed and will furnish the Representatives with copies thereof; (iv) will prepare the Final Term Sheet, substantially in the form of Schedule III hereto and approved by the Representatives and file the Final Term Sheet pursuant to Rule 433(d) of the Rules and Regulations within the time period prescribed by such Rule; (iiiv) will advise the institution Representatives promptly after it receives notice thereof, of the issuance by the Commission or any state or other regulatory body of any stop order proceedings in respect or any order suspending the effectiveness of the Registration Statement Statement, suspending or preventing the threatening use of any proceeding for that purposePreliminary Prospectus, and (iv) the receipt by the Company of Prospectus or any notification with respect to the suspension of Issuer Free Writing Prospectus or suspending the qualification of the Securities Notes for offering or sale in any jurisdiction or jurisdiction, of the institution initiation or threatening of any proceedings for any such purpose. Each purpose or pursuant to Section 8A of the Securities Act, of receipt by the Company from the Commission of any notice of objection to the use of the Registration Statement or any post-effective amendment thereto or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and the Guarantor (vi) will use its best efforts to prevent the issuance of any such stop order or the suspension of other such order or any such qualification notice of objection and, if issueda stop order or other such order is issued or any such notice of objection is received, to obtain as soon as possible the lifting or withdrawal thereof.
(b) The Company will prepare and file with the Commission, promptly upon the request of the Representatives, any amendments or supplements to the Registration Statement, the Disclosure Package or the Prospectus which, in the opinion of the Representatives, may be necessary or advisable in connection with the offering of the Notes.
(c) Upon request, to The Company will furnish to each of the Underwriters, without charge, a signed copy Representatives and to counsel for the Underwriters such number of conformed copies of the Registration Statement Statement, as originally filed and each amendment thereto (including excluding exhibits thereto) and to furnish to the Underwriters in New York City, without charge, promptly following the date of other than this Agreement), as many copies of any Preliminary Prospectus, the Final Term Sheet and any other Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements to any supplements of such documents (including any document filed under the Exchange Act and amendments thereto or deemed to be incorporated by reference in the Registration Statement Statement, any Preliminary Prospectus or the Prospectus), in each case as soon as available and in such quantities as the Underwriters Representatives may from time to time reasonably request.
(d) To furnish During the period in which the Prospectus relating to the Underwriters a copy Notes (or in lieu thereof, the notice referred to in Rule 173(a) of each proposed free writing prospectus the Rules and Regulations) is required to be prepared by or on behalf of, used by, or referred to by the Company and the Guarantor and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(e) Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) delivered under the Securities Act a free writing prospectus prepared Act, the Company will comply with all requirements imposed upon it by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(f) If the General Disclosure Package is being used to solicit offers to buy the Securities at a Act and by the Rules and Regulations, as from time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist time in force, so far as a result of which it is necessary to amend permit the continuance of sales of or supplement the General Disclosure Package in order to make the statements therein, dealings in the light Notes as contemplated by the provisions of this Agreement and by the circumstances, not misleading, or if Prospectus. If during such period any event shall occur or condition exist occurs as a result of which the General Disclosure Package conflicts with or the information contained in the Registration Statement Prospectus as then on file, or if, in the reasonable opinion of counsel for the Underwriters, it is necessary to amend or supplement the General Disclosure Package to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the General Disclosure Package so that the statements in the General Disclosure Package as so amended or supplemented will not, in the light would include an untrue statement of the circumstances under which they were made when delivered a material fact or omit to state a prospective purchaser, be misleading or so that the General Disclosure Package, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the General Disclosure Package, as amended or supplemented, will comply with applicable law.
(g) If, during such period after the first date of the public offering of the Securities as in the reasonable opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaserthen existing, not misleading, or if, in the opinion of counsel for the Underwriters, if during such period it is necessary to amend the Registration Statement or amend or supplement the Disclosure Package or the Prospectus or file any document to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Guarantor) to which Securities may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act, the Company will promptly notify the Representatives and will, subject to Section 4(a) is delivered to a purchaserhereof, be misleading amend the Registration Statement, amend or so that supplement the Disclosure Package or the Prospectus, as amended the case may be, or supplementedfile any document (in each case, at the expense of the Company) so as to correct such statement or omission or to effect such compliance, and will comply with applicable law.
(h) To endeavor furnish without charge to qualify each Underwriter as many written and electronic copies of any such amendment or supplement as the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall Representatives may from time to time reasonably request.
(ie) To As soon as practicable, the Company will make generally available to its security holders and the Guarantor’s shareholders and to you as soon as practicable Underwriters an earnings statement covering a period of at least twelve months beginning with satisfying the first fiscal quarter of the Guarantor occurring after the date of this Agreement which shall satisfy the provisions requirements of Section 11(a) of the Securities Act and the rules and regulations Rule 158 of the Commission thereunderRules and Regulations.
(jf) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the The Company and the Guarantor jointly and severally agree agree, whether or not this Agreement is terminated or the sale of the Notes to the Underwriters is consummated, to pay all fees, expenses, costs and charges in connection with: (i) the preparation, printing, filing, registration, delivery and shipping of the Registration Statement (including any exhibits thereto), any Preliminary Prospectus, any Issuer Free Writing Prospectus, the Prospectus and any amendments or cause supplements thereto; (ii) the printing, producing, copying and delivering this Agreement, the Indenture, closing documents (including any compilations thereof) and any other agreements, memoranda, correspondence and other documents printed and delivered in connection with the offering, purchase, sale and delivery of the Notes; (iii) the services of the Company’s independent registered public accounting firm; (iv) the services of the Company’s counsel; (v) the qualification of the Notes under the securities laws of the several jurisdictions as provided in Section 4(l) hereof and the preparation, printing and distribution of a Blue Sky Memorandum (including the related fees and expenses of counsel to be paid all reasonable expenses the Underwriters); (vi) any rating of the Notes by rating agencies; (vii) the services of the Trustee and any agent of the Trustee (including the fees and disbursements of counsel for the Trustee); (viii) any “road show” or other investor presentations relating to the offering of the Notes (including, without limitation, for meetings and travel); and (ix) otherwise incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s and the Guarantor’s counsel and the Guarantor’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the General Disclosure Package, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company or the Guarantor and amendments and supplements to any of the foregoing, including the filing fees payable to the Commission relating to the Securities (within the time required by Rule 456(b)(1), if applicable), all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or legal investment memorandum in connection with the offer and sale of the Securities under state securities laws and all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(h) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky or legal investment memorandum, (iv) all filing fees and the reasonable fees and disbursements of counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Securities by the Financial Industry Regulatory Authority, (v) the cost of printing certificates representing the Securities, (vi) the costs and charges of any trustee or depositary, (vii) the costs and expenses of the Company and the Guarantor relating to investor presentations on any “road show,” if any, undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantor, travel and lodging expenses of the representatives and officers of the Company and the Guarantor and any such consultants, and one-half of the cost of any aircraft chartered in connection with the road show, and (viii) all other costs and expenses incident to the performance of the obligations of the Company and the Guarantor hereunder for which provision is not otherwise made in this SectionSection 4(f). It is understood, however, that that, except as provided in this Section, Section 4(f) or Sections 7 entitled “Indemnity and Contribution,” and the last paragraph of Section 9 belowhereof, the Underwriters will pay all of their own costs and expenses, including the fees and disbursements expenses of their counsel to the Underwriters and any advertising expenses connected incurred in connection with the offering of the Notes. If the sale of the Notes provided for herein is not consummated by reason of acts of the Company or changes in circumstances of the Company pursuant to Section 9 of this Agreement, or by reason of any failure, refusal or inability on the part of the Company or the Guarantor to perform any agreement on its part to be performed or because any other condition of the Underwriters’ obligations hereunder is not fulfilled or if the Underwriters decline to purchase the Notes for any reason permitted under this Agreement (other than by reason of a default by any of the Underwriters pursuant to Section 8), the Company will reimburse the Underwriters for all reasonable out-of-pocket disbursements (including fees and expenses of counsel to the Underwriters) incurred by the Underwriters in connection with any offers they may makeinvestigation or preparation made by them in respect of the marketing of the Notes or in contemplation of the performance by them of their obligations hereunder.
(g) Until completion of the distribution of the Notes, the Company will timely file all reports, documents and amendments to previously filed documents required to be filed by it pursuant to Section 12, 13(a), 13(c), 14 or 15(d) of the Exchange Act.
(h) The Company will apply the net proceeds from the sale of the Notes as set forth in the most recent Preliminary Prospectus and the Prospectus.
(i) Until seven days following the Closing Date, the Company will not, without the prior written consent of the Representatives, directly or indirectly, issue, sell, offer to sell, grant any option for the sale of or otherwise dispose of, any debt securities that are substantially similar to the Notes (including, without limitation, with respect to the maturity, currency, interest rate and other material terms of the Notes).
(j) The Company will pay the required Commission filing fees relating to the Notes within the time period required by Rule 456(b)(1) of the Rules and Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Rules and Regulations.
(k) Each If required by Rule 430B(h) of the Rules and Regulations, the Company will prepare a prospectus in a form approved by the Representatives and file such prospectus pursuant to Rule 424(b) of the Rules and Regulations not later than may be required by such Rule; and the Guarantor represents and agrees that, unless it obtains the prior consent of each Underwriter, and each Underwriter agrees that, unless it obtains the prior consent of the Company and the Guarantor, it has not made and will not make any offer relating no further amendment or supplement to the Securities such prospectus that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to will be filed with the Commission. Any such free writing prospectus consented to disapproved by the Company and the Guarantor and each Underwriter, including those identified on Schedule I hereto, is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Company and the Guarantor represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and has complied and will comply with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keepingRepresentatives promptly after reasonable notice thereof.
(l) To prepare a final term sheet relating to the offering of the Securities, containing information that describes the final terms of the Securities The Company and any other information agreed to by the Company, the Guarantor and will cooperate with the Underwriters and substantially with counsel to the Underwriters in connection with the form attached qualification of the Notes for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as Exhibit A hereto, the Underwriters may designate and will file such final term sheet within consents to service of process or other documents necessary or appropriate in order to effect such qualification and to permit the period required by Rule 433(d)(5)(ii). Any continuance of sales and dealings in such final term sheet jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided, however, that in no event will the Company or the Guarantor be obligated to qualify to do business in any jurisdiction where it is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus not now so qualified or to take any action which would subject it to service of process in suits, other than for purposes actions or proceedings arising out of this Agreement. Each the offering or sale of the Notes, in any jurisdiction where it is not now so subject.
(m) The Company will not take, directly or indirectly, any action designed to cause or result in, or that might cause or result in, stabilization or manipulation of the price of the Notes to facilitate the sale or resale of the Notes.
(n) The Company will comply with all agreements set forth in the representation letters of the Company and the Guarantor also consents to DTC relating to the use by the Underwriters of a free writing prospectus that contains only (i)(x) information describing the preliminary terms acceptance of the Securities or their offering or (y) information that describes Notes for “book-entry” transfer through the final terms facilities of the Securities or their offering and that is included in the final term sheet of the Company and the Guarantor contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this AgreementDTC.
Appears in 1 contract
Covenants of the Company and the Guarantor. The Each of the Company and the Guarantor Guarantor, jointly and severally covenant severally, covenants and agrees with each Underwriter the Initial Purchaser as follows:
a. To advise the Initial Purchaser promptly and, if requested by the Initial Purchaser, confirm such advice in writing, (aI) The Company after it receives notice of the issuance by the Securities and Exchange Commission (the Guarantor have filed "Commission") or will file each Statutory Prospectus (including any state securities commission, of any stop order suspending the Prospectus) pursuant to and qualification or exemption from qualification of any Notes for offering or sale in accordance with Rule 424(b). The Company and the Guarantor have complied and will comply with Rule 433.
(b) The Company any jurisdiction, or the Guarantor will promptly advise the Underwriters initiation of any proposal to amend or supplement proceeding for such purpose by the Registration Statement Commission or any Statutory Prospectus at any time and will offer the Underwriters a reasonable opportunity to comment on any such amendment state securities commission or supplement; and the Company or the Guarantor will also advise the Underwriters promptly of (i) the filing of any such amendment or supplementother regulatory authority, (ii) of the initiation or threatening of any proceeding for any such purpose, (iii) of any request by the Commission or its staff any state securities commission or any other regulatory authority for any amendment to amending or supplementing the Registration Statement, for any supplement to any Statutory Prospectus Preliminary Offering Memorandum or the Offering Memorandum or for any additional information, (iii) the institution by the Commission of any stop order proceedings in respect of the Registration Statement or the threatening of any proceeding for that purpose, and (iv) of the receipt by the Company or the Guarantor or any representative or attorney of either of them of any notification with respect other communication from the Commission or any state securities commission or other regulatory authority relating to the suspension of Company, the qualification of Guarantor, the Securities in any jurisdiction Preliminary Offering Memorandum or the institution Offering Memorandum or threatening of any proceedings for such purpose. Each of (v) during the Company and the Guarantor will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(c) Upon request, to furnish to the Underwriters, without charge, a signed copy of the Registration Statement (including exhibits thereto) and to furnish to the Underwriters time in New York City, without charge, promptly following the date of this Agreement, as many copies of the Prospectus and any supplements and amendments thereto or to the Registration Statement as the Underwriters may reasonably request.
(d) To furnish to the Underwriters a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and the Guarantor and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(e) Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(f) If the General Disclosure Package is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the General Disclosure Package conflicts with the information contained in the Registration Statement then on file, or if, in the reasonable opinion of counsel for the Underwriters, it is necessary to amend or supplement the General Disclosure Package to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the General Disclosure Package so that the statements in the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances under which they were made when delivered to a prospective purchaser, be misleading or so that the General Disclosure Package, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the General Disclosure Package, as amended or supplemented, will comply with applicable law.
(g) If, during such period after the first date of the public offering of the Securities as in the reasonable opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in rule 173(a) of the Securities Act) Offering Memorandum is required by law to be delivered in connection with sales by an Underwriter or dealerExempt Resales, of the happening of any event shall occur that makes any statement of a material fact made in the Preliminary Offering Memorandum, as then amended or condition exist supplemented, or the Offering Memorandum, as a result then amended or supplemented, untrue or that requires the making of which it is necessary any additions to amend or supplement changes in the Prospectus Preliminary Offering Memorandum, as then amended or supplemented, or the Offering Memorandum in order to make the statements therein, in the light of the circumstances when under which they are made, not misleading. Each of the Prospectus Company and the Guarantor shall use its best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any Notes (including the Guarantee) under any federal or state securities or Blue Sky laws and, if at any time the commission or any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any Notes under any federal or state securities or Blue Sky laws, each of the Company and the Guarantor shall use its best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
b. To promptly deliver to the Initial Purchaser such number of copies of the Offering Memorandum and all amendments of and supplements thereto as the Initial Purchaser may reasonably request. The Company and Guarantor consent to the use of the Preliminary Offering Memorandum up to the time at which the Offering Memorandum is available and the Offering Memorandum, and any amendments and supplements thereto, by the Initial Purchaser in connection with Exempt Resales.
c. Not to amend or supplement the Preliminary Offering Memorandum or the Offering Memorandum prior to the Closing Date unless the Initial Purchaser shall previously have been advised thereof and shall have consented to or not have reasonably objected thereto in writing within a reasonable time after being furnished a copy thereof. Each of the Company and the Guarantor shall promptly prepare, upon the Initial Purchaser's request, any amendment
d. If, after the date hereof and prior to consummation of any Exempt Resale, any event shall occur as a result of which, in the judgment of either the Company or the Guarantor or in lieu thereof the notice referred reasonable judgment of Initial Purchaser's Counsel, it becomes necessary to in Rule 173(a) amend or supplement the Preliminary Offering Memorandum (prior to the availability of the Securities ActOffering Memorandum) or Offering Memorandum in order to make the statements therein, in the light of the circumstances existing when such Preliminary Offering Memorandum or Offering Memorandum is delivered to an Eligible Purchaser which is a prospective purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, if it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, Preliminary Offering Memorandum (prior to the Underwriters and to the dealers (whose names and addresses you will furnish to the Guarantor) to which Securities may have been sold by you on behalf availability of the Underwriters and Offering Memorandum) or forthwith the prepare an appropriate amendment or supplement to any other dealers upon request, either amendments such Preliminary Offering Memorandum or supplements to the Prospectus Offering Memorandum so that the statements in the Prospectus therein as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) it is delivered to a purchaserso delivered, be misleading misleading, or so that the Prospectus, as amended such Preliminary Offering Memorandum or supplemented, Offering Memorandum will comply with applicable law.
(h) To e. The Company and the Guarantor will endeavor in good faith, in cooperation with the Initial Purchaser, to qualify the Securities Notes for offer offering and sale under the securities laws relating to the offering or Blue Sky laws sale of the Notes in such jurisdictions as you shall reasonably request.
(i) To make generally available to the Guarantor’s shareholders Initial Purchaser may designate and to you maintain such qualification in effect for so long as soon as practicable an earnings statement covering a period of at least twelve months beginning with required for the first fiscal quarter of the Guarantor occurring after the date of this Agreement which distribution thereof; except that in no event shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(j) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company and the Guarantor jointly and severally agree to pay or cause to be paid all reasonable expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s and the Guarantor’s counsel and the Guarantor’s accountants obligated in connection with therewith to qualify as a foreign corporation or to execute a general consent to service of process.
f. The Company will apply the registration and delivery of proceeds from the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the General Disclosure Package, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company or the Guarantor and amendments and supplements to any of the foregoing, including the filing fees payable to the Commission relating to the Securities (within the time required by Rule 456(b)(1), if applicable), all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or legal investment memorandum in connection with the offer and sale of the Securities Series A Notes as set forth under state securities laws and all expenses the caption "Use of Proceeds" in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(h) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky or legal investment memorandum, (iv) all filing fees and the reasonable fees and disbursements of counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Securities by the Financial Industry Regulatory Authority, (v) the cost of printing certificates representing the Securities, (vi) the costs and charges of any trustee or depositary, (vii) the costs and expenses of the Company and the Guarantor relating to investor presentations on any “road show,” if any, undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantor, travel and lodging expenses of the representatives and officers of the Company and the Guarantor and any such consultants, and one-half of the cost of any aircraft chartered in connection with the road show, and (viii) all other costs and expenses incident to the performance of the obligations of the Company and the Guarantor hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 7 entitled “Indemnity and Contribution,” and the last paragraph of Section 9 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel and any advertising expenses connected with any offers they may makeOffering Memorandum.
(k) g. Each of the Company and the Guarantor represents will use its best efforts to cause the Notes to be designated Private Offerings, Resales and agrees thatTrading through Automated Linkages ("PORTAL") market securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, unless it obtains the prior consent of each UnderwriterInc., and each Underwriter agrees that, unless it obtains the prior consent of the Company and the Guarantor, it has not made and will not make any offer relating to trading in the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free writing prospectus consented to by the PORTAL market.
h. The Company and the Guarantor and will comply with all of the agreements (to the extent each Underwriter, including those identified on Schedule I hereto, is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Company and the Guarantor represents that it has treated is a party thereto) set forth in the Registration Rights Agreement, the Indenture and agrees that it will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and has complied and will comply with in the requirements representation letter of Rules 164 and 433 applicable the Company to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping.
The Depository Trust Company (l"DTC") To prepare a final term sheet relating to the offering approval of the SecuritiesNotes by DTC for "book-entry" transfer.
i. During the period of 180 days from the date hereof, containing information that describes the final terms Company will not, without prior written consent of the Securities and Initial Purchaser or as permitted in the Indenture, issue, sell, offer or contract to sell, grant any option for the sale of, or otherwise dispose of, directly or indirectly, any debt securities in any such case for cash, other information agreed to by than the Company, the Guarantor and the Underwriters and substantially in the form attached as Exhibit A hereto, and will file such final term sheet within the period required by Rule 433(d)(5)(ii). Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes 's sale of this Agreement. Each of the Company and the Guarantor also consents to the use by the Underwriters of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company and the Guarantor contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433, it being understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this AgreementNotes hereunder.
Appears in 1 contract
Covenants of the Company and the Guarantor. The Company and the Guarantor jointly and severally covenant with each Underwriter the Underwriters as follows:
(a) The Company and the Guarantor have filed Guarantor, on or prior to the Closing Date, will file each Statutory Prospectus (including the Prospectus) pursuant deliver to and in accordance with Rule 424(b). The Company and the Guarantor have complied and will comply with Rule 433.
(b) The Company or the Guarantor will promptly advise the Underwriters conformed copies of any proposal to amend or supplement the Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any Statutory Prospectus at any time post-effective amendment (in each case including all exhibits filed therewith, and will offer the Underwriters a reasonable opportunity to comment on any such amendment including unsigned copies of each consent and certificate included therein or supplement; and filed as an exhibit thereto, except exhibits incorporated by reference, unless specifically requested). As soon as the Company or the Guarantor is advised thereof, they will also advise the Underwriters promptly Representatives orally of (i) the filing issuance of any such amendment or supplement, (ii) any request by stop order under the Commission or its staff for any amendment 1933 Act with respect to the Registration Statement, for any supplement to any Statutory Prospectus or for any additional information, (iii) the institution by the Commission of any stop order proceedings in respect of the Registration Statement or the threatening of any proceeding for that purpose, and (iv) the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities in any jurisdiction or the institution or threatening of any proceedings for such purpose. Each that purpose or pursuant to Section 8A of the 1933 Act against the Company and or the Guarantor or related to the offering, of which the Company or the Guarantor shall have received notice, and will use its best efforts to prevent the issuance of any such stop order or and to secure the suspension of any such qualification andprompt removal thereof, if issued, to obtain as soon as possible . The Company and the withdrawal thereof.
(c) Upon request, to furnish Guarantor will deliver to the Underwriters, without charge, a signed copy Representatives sufficient conformed copies of the Registration Statement Statement, the Base Prospectus, the Pricing Prospectus and the Final Supplemented Prospectus and of all supplements and amendments thereto (including exhibits theretoin each case without exhibits) and to furnish for distribution to the Underwriters in New York Cityand, without charge, promptly following the date of this Agreementfrom time to time, as many copies of the Base Prospectus, the Pricing Prospectus and any supplements and amendments thereto or to the Registration Statement Final Supplemented Prospectus as the Underwriters may reasonably requestrequest for the purposes contemplated by the 1933 Act or the 1934 Act.
(db) To The Company and the Guarantor will furnish the Underwriters with written or electronic copies of each amendment and supplement to the Final Supplemented Prospectus relating to the offering of the Securities in such quantities as the Underwriters may from time to time reasonably request. If, during the period (not exceeding nine months) when the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the 1933 Act) shall be required by law in connection with the sale of any Securities by an Underwriter, any event relating to or affecting the Company or the Guarantor, or of which the Company and the Guarantor shall be advised in writing by the Representatives, shall occur, which in the opinion of the Company, the Guarantor or of Underwriters’ counsel should be set forth in a supplement to or an amendment of the Final Supplemented Prospectus, as the case may be, in order to make the Final Supplemented Prospectus not misleading in light of the circumstances when it (or in lieu thereof, the notice referred to in Rule 173(a) under the 1933 Act) is delivered, or if for any other reason it shall be necessary during such period to amend or supplement the Final Supplemented Prospectus or to file under the 1934 Act any document incorporated by reference in the Final Supplemented Prospectus in order to comply with the 1933 Act or the 1934 Act, the Company and the Guarantor forthwith will (i) notify the Underwriters to suspend solicitation of purchases of the Securities and (ii) at its expense, make any such filing or prepare and furnish to the Underwriters a copy reasonable number of each proposed free writing prospectus copies of a supplement or supplements or an amendment or amendments to be prepared by the Final Supplemented Prospectus which will supplement or on behalf ofamend the Final Supplemented Prospectus so that, used byas supplemented or amended, it will not contain any untrue statement of a material fact or referred omit to by the Company and the Guarantor and not to use or refer to state any proposed free writing prospectus to which you reasonably object.
(e) Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(f) If the General Disclosure Package is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is material fact necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the General Disclosure Package conflicts with the information contained in the Registration Statement then on file, or if, in the reasonable opinion of counsel for the Underwriters, it is necessary to amend or supplement the General Disclosure Package to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the General Disclosure Package so that the statements in the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances under which they were made when delivered to a prospective purchaser, be misleading or so that the General Disclosure Package, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the General Disclosure Package, as amended or supplemented, will comply with applicable law.
(g) If, during such period after the first date of the public offering of the Securities as in the reasonable opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Final Supplemented Prospectus (or in lieu thereof thereof, the notice referred to in Rule 173(a) of under the Securities 1933 Act) is delivered to a purchaserdelivered, not misleadingmisleading or which will effect any other necessary compliance. In case any Underwriter is required to deliver a prospectus in connection with the sale of any Securities after the expiration of the period specified in the preceding sentence, the Company or the Guarantor, upon the request of such Underwriter, will furnish to such Underwriter, at the expense of such Underwriter, a reasonable quantity of a supplemented or amended prospectus, or ifsupplements or amendments to the Final Supplemented Prospectus, complying with Section 10(a) of the 1933 Act. During the period specified in the opinion second sentence of counsel for this subsection, the Underwriters, it is necessary Company and the Guarantor will continue to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, prepare and file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Guarantor) to which Securities may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either a timely basis all documents or amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(h) To endeavor to qualify the Securities for offer and sale required under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request.
(i) To make generally available to the Guarantor’s shareholders and to you as soon as practicable an earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Guarantor occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities 1934 Act and the rules and regulations of thereunder; provided, that the Commission thereunderCompany shall not file such documents or amendments without also furnishing copies thereof prior to such filing to the Representatives and Hunton Xxxxxxx Xxxxx LLP.
(jc) Whether The Company and the Guarantor will endeavor, in cooperation with the Underwriters, to qualify the Securities for offering and sale under the applicable securities laws of such states and the other jurisdictions of the United States as the Representatives may designate; provided, however, that neither the Company nor the Guarantor shall be obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to file a consent to service of process or to file annual reports or to comply with any other requirements in connection with such qualification deemed by the Company or the Guarantor to be unduly burdensome.
(d) The Company and the Guarantor will make generally available to their security holders as soon as practicable but not later than 45 days after the transactions contemplated close of the period covered thereby, an earnings statement of the Guarantor (in form complying with the provisions of Rule 158 of the rules and regulations under the 1933 Act) covering a twelve-month period beginning not later than the first day of the Guarantor’s fiscal quarter next following the “effective date” (as defined in Rule 158) of the Registration Statement.
(e) As soon as practicable after the date of this Agreement are consummated or this Agreement is terminatedAgreement, and in any event within the time prescribed by Rule 424 under the 1933 Act, the Company and the Guarantor jointly and severally agree to pay or cause will file the Final Supplemented Prospectus, in a form approved by the Representatives, such approval not to be paid all reasonable expenses incident to unreasonably withheld, with the performance Commission and will advise the Representatives of its obligations under this Agreementsuch filing and will confirm such advice in writing. Furthermore, including: (i) the fees, disbursements and expenses of the Company’s Company and the Guarantor’s counsel and the Guarantor’s accountants in connection with the registration and delivery of the Securities Guarantor will make any other required filings pursuant to Rule 433(d)(1) under the Securities 1933 Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the General Disclosure Package, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company or the Guarantor and amendments and supplements to any of the foregoing, including the filing fees payable to the Commission relating to the Securities (within the time required by Rule 456(b)(1), if applicable), all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or legal investment memorandum in connection with the offer and sale of the Securities under state securities laws and all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(h) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky or legal investment memorandum, (iv) all filing fees and the reasonable fees and disbursements of counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Securities by the Financial Industry Regulatory Authority, (v) the cost of printing certificates representing the Securities, (vi) the costs and charges of any trustee or depositary, (vii) the costs and expenses of the Company and the Guarantor relating to investor presentations on any “road show,” if any, undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantor, travel and lodging expenses of the representatives and officers of the Company and the Guarantor and any such consultants, and one-half of the cost of any aircraft chartered in connection with the road show, and (viii) all other costs and expenses incident to the performance of the obligations of the Company and the Guarantor hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 7 entitled “Indemnity and Contribution,” and the last paragraph of Section 9 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel and any advertising expenses connected with any offers they may makeRule.
(kf) Each During a period of 15 days from the Company and the Guarantor represents and agrees that, unless it obtains the prior consent of each Underwriter, and each Underwriter agrees that, unless it obtains the prior consent of the Company and the Guarantor, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Guarantor and each Underwriter, including those identified on Schedule I hereto, is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Company and the Guarantor represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and has complied and will comply with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping.
(l) To prepare a final term sheet relating to the offering of the Securities, containing information that describes the final terms of the Securities and any other information agreed to by the Company, the Guarantor and the Underwriters and substantially in the form attached as Exhibit A hereto, and will file such final term sheet within the period required by Rule 433(d)(5)(ii). Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes date of this Agreement. Each of , neither the Company and nor the Guarantor also consents will, without the Representatives’ prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, any Senior Notes or any security convertible into or exchangeable into or exercisable for the Senior Notes or any debt securities substantially similar to the use by Senior Notes (except for the Underwriters of a free writing prospectus that contains only (i)(x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company and the Guarantor contemplated in the first sentence of this subsection or (ii) other information that is not “issuer information,” as defined in Rule 433, it being understood that any such free writing prospectus referred Senior Notes issued pursuant to in clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement). The Representatives agree that commercial paper or other debt securities with scheduled maturities of less than one year are not subject to this Section 4(f).
Appears in 1 contract
