Covenants of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, covenant and agree with each Underwriter that: (a) The Company and the Guarantors (i) will prepare the Prospectus in a form approved by the Representatives and file the Prospectus pursuant to Rule 424(b) of the Rules and Regulations within the time period prescribed by such Rule; (ii) will not file any amendment or supplement to the Registration Statement or the Prospectus or file any document under the Exchange Act before the termination of the offering of the Notes by the Underwriters 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 notice thereof (such consent not to be unreasonably withheld or delayed); (iii) will advise the Representatives, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement, the most recent Preliminary Prospectus or the Prospectus has been filed; (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; (v) will advise the Representatives promptly after it receives notice thereof, in each case, of the issuance by the Commission or any state or other regulatory body of any stop order or any order suspending the effectiveness of the Registration Statement, suspending or preventing the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or suspending the qualification of the Notes or the Guarantees for offering or sale in any jurisdiction, of the initiation or threatening of any proceedings for any such purpose or pursuant to Section 8A of the Securities Act, of receipt by the Company or any Guarantor 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 (vi) will use its reasonable best efforts to prevent the issuance of any stop order or other such order or any such notice of objection and, if a 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) If, at any time prior to completion of the distribution of the Notes, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the opinion of the Representatives or counsel for the Underwriters, should be set forth in the Disclosure Package or the Prospectus so that the Disclosure Package or the Prospectus, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Disclosure Package or the Prospectus in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Representatives and counsel for the Underwriters a reasonable number of copies thereof. (c) The Company and the Guarantors will furnish to each of the Representatives and to counsel for the Underwriters such number of conformed copies of the Registration Statement, as originally filed and each amendment thereto (excluding exhibits), any Preliminary Prospectus, the Final Term Sheet and any other Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements to any of such documents (other than any document filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, any Preliminary Prospectus or the Prospectus), in each case as soon as available and in such quantities as the Representatives may from time to time reasonably request. (d) During the period in which the Prospectus relating to the Notes and the Guarantees (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is required to be delivered under the Securities Act, the Company and the Guarantors will comply with all requirements imposed upon it by the Securities Act and by the Rules and Regulations, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Notes as contemplated by the provisions of this Agreement and by the Prospectus. If during such period any event occurs as a result of which the Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or 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 the Securities Act, the Company and the Guarantors will promptly notify the Representatives and will, subject to Section 4(a) hereof, amend the Registration Statement, amend or supplement the Disclosure Package or the Prospectus, as the case may be, or file any document (in each case, at the expense of the Company and the Guarantors) so as to correct such statement or omission or to effect such compliance, and will furnish without charge to each Underwriter as many written and electronic copies of any such amendment or supplement as the Representatives may from time to time reasonably request. (e) As soon as practicable, the Company will make generally available to its security holders and the Underwriters an earnings statement satisfying the requirements of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (f) The Company and the Guarantors jointly and severally agree, whether or not this Agreement becomes effective or 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 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 and the Guarantors’ counsel; (v) the qualification of the Notes and the Guarantees 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 reasonable expenses of counsel to the Underwriters); (vi) any rating of the Notes by rating agencies; (vii) the reasonable fees and expenses of counsel for the Underwriters in connection with its review of the offering’s compliance with FINRA rules and the filing fees incident to FINRA’s review, if any, and approval of the Underwriters’ participation in the offering and distribution of the Notes (it being understood that the expenses described in clause (v) and this clause (vii) of this Section 4(f) shall not exceed, in the aggregate, $10,000); (viii) the services of the Trustee and any agent of the Trustee (including the fees and disbursements of counsel for the Trustee); (ix) any “road show” or other investor presentations relating to the offering of the Notes; and (x) otherwise incident to the performance by the Company and the Guarantors of their obligations hereunder for which provision is not otherwise made in this Section 4(f). It is understood, however, that, except as provided in this Section 4(f) or Sections 7 and 9 hereof, the Underwriters will pay all of their own costs and expenses, including the fees and expenses of counsel to the Underwriters and any advertising expenses incurred in connection with the offering of the Notes. (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 in the manner set forth in the most recent Preliminary Prospectus and the Prospectus. (i) During the period beginning on the date hereof and continuing to and including the Closing Date, neither the Company nor any Guarantor will, 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 and the Guarantees (including, without limitation, with respect to the maturity, currency, interest rate and other material terms thereof). (j) The Company and the Guarantors will pay the required Commission filing fees relating to the Notes and the Guarantees 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) If required by Rule 430B(h) of the Rules and Regulations, the Company and the Guarantors 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 Company and the Guarantors will not file any amendment or supplement to such prospectus, which filing is not consented to by the Representatives promptly after reasonable notice thereof (such consent not to be unreasonably withheld or delayed). (l) The Company and the Guarantors will cooperate with the Representatives and with counsel to the Underwriters in connection with the qualification of the Notes and the Guarantees for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Underwriters may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualification and to permit the continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the distribution of the Notes and the Guarantees; provided, however, that in no event will either the Company or the Guarantors be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than for actions or proceedings arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject. (m) Neither the Company nor any of the Guarantors will take, directly or indirectly, any action designed to cause or result in, or which could reasonably be expected to cause or result in, the 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 letter of the Company to DTC relating to the acceptance of the Notes for “book-entry” transfer through the facilities of DTC.

Appears in 4 contracts

Samples: Underwriting Agreement (O Reilly Automotive Inc), Underwriting Agreement (O'Reilly II Aviation Corp), Underwriting Agreement (O Reilly Automotive Inc)

Covenants of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, covenant and agree with each Underwriter that: (a) The Company and the Guarantors (i) will prepare the Prospectus in a form approved by the Representatives and file the Prospectus pursuant to Rule 424(b) of the Rules and Regulations within the time period prescribed by such Rule; (ii) will not file any amendment or supplement to the Registration Statement or the Prospectus or file any document under the Exchange Act before the termination of the offering of the Notes by the Underwriters 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 notice thereof (such consent not to be unreasonably withheld or delayed); (iii) will advise the Representatives, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement, the most recent Preliminary Prospectus or the Prospectus has been filed; (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; (v) will advise the Representatives promptly after it receives notice thereof, in each case, of the issuance by the Commission or any state or other regulatory body of any stop order or any order suspending the effectiveness of the Registration Statement, suspending or preventing the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or suspending the qualification of the Notes ~~or the Guarantees~~ for offering or sale in any jurisdiction, of the initiation or threatening of any proceedings for any such purpose or pursuant to Section 8A of the Securities Act, of receipt by the Company or any Guarantor 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 (vi) will use its reasonable best efforts to prevent the issuance of any stop order or other such order or any such notice of objection and, if a 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) If, at any time prior to completion of the distribution of the Notes, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the opinion of the Representatives or counsel for the Underwriters, should be set forth in the Disclosure Package or the Prospectus so that the Disclosure Package or the Prospectus, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Disclosure Package or the Prospectus in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Representatives and counsel for the Underwriters a reasonable number of copies thereof. (c) The Company and the Guarantors will furnish to each of the Representatives and to counsel for the Underwriters such number of conformed copies of the Registration Statement, as originally filed and each amendment thereto (excluding exhibits), any Preliminary Prospectus, the Final Term Sheet and any other Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements to any of such documents (other than any document filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, any Preliminary Prospectus or the Prospectus), in each case as soon as available and in such quantities as the Representatives may from time to time reasonably request. (d) During the period in which the Prospectus relating to the Notes and the Guarantees (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is required to be delivered under the Securities Act, the Company and the Guarantors will comply with all requirements imposed upon it by the Securities Act and by the Rules and Regulations, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Notes as contemplated by the provisions of this Agreement and by the Prospectus. If during such period any event occurs as a result of which the Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or 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 the Securities Act, the Company and the Guarantors will promptly notify the Representatives and will, subject to Section 4(a) hereof, amend the Registration Statement, amend or supplement the Disclosure Package or the Prospectus, as the case may be, or file any document (in each case, at the expense of the Company and the Guarantors) so as to correct such statement or omission or to effect such compliance, and will furnish without charge to each Underwriter as many written and electronic copies of any such amendment or supplement as the Representatives may from time to time reasonably request. (e) As soon as practicable, the Company will make generally available to its security holders and the Underwriters an earnings statement satisfying the requirements of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (f) The Company and the Guarantors jointly and severally agree, whether or not this Agreement becomes effective or is terminated or the sale of the Notes to the Underwriters is ~~consummated,~~ 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 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 and the Guarantors’ counsel; (v) the qualification of the Notes and the Guarantees 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 reasonable expenses of counsel to the Underwriters); (vi) any rating of the Notes by rating agencies; (vii) the reasonable fees and expenses of counsel for the Underwriters in connection with its review of the offering’s compliance with FINRA rules and the filing fees incident to FINRA’s review, if any, and approval of the Underwriters’ participation in the offering and distribution of the Notes (it being understood that the expenses described in clause (v) and this clause (vii) of this Section 4(f) shall not exceed, in the aggregate, $10,000); (viii) the services of the Trustee and any agent of the Trustee (including the fees and disbursements of counsel for the Trustee); (ix) any “road show” or other investor presentations relating to the offering of the Notes; and (x) otherwise incident to the performance by the Company and the Guarantors of their obligations hereunder for which provision is not otherwise made in this Section 4(f). It is understood, however, that, except as provided in this Section 4(f) or Sections 7 and 9 hereof, the Underwriters will pay all of their own costs and expenses, including the fees and expenses of counsel to the Underwriters and any advertising expenses incurred in connection with the offering of the Notes. (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 in the manner set forth in the most recent Preliminary Prospectus and the Prospectus. (i) During the period beginning on the date hereof and continuing to and including the Closing Date, neither the Company nor any Guarantor will, 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 and the Guarantees (including, without limitation, with respect to the maturity, currency, interest rate and other material terms thereof). (j) The Company and the Guarantors will pay the required Commission filing fees relating to the Notes and the Guarantees 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) If required by Rule 430B(h) of the Rules and Regulations, the Company and the Guarantors 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 Company and the Guarantors will not file any amendment or supplement to such prospectus, which filing is not consented to by the Representatives promptly after reasonable notice thereof (such consent not to be unreasonably withheld or delayed). (l) The Company and the Guarantors will cooperate with the Representatives and with counsel to the Underwriters in connection with the qualification of the Notes ~~and the Guarantees~~ for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Underwriters may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualification and to permit the continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the distribution of the ~~Notes and the Guarantees~~Notes; provided, however, that in no event will either the Company or the Guarantors be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than for actions or proceedings arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject. (m) Neither the Company nor any of the Guarantors will take, directly or indirectly, any action designed to cause or result in, or which could reasonably be expected to cause or result in, the 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 letter of the Company to DTC relating to the acceptance of the Notes for “book-entry” transfer through the facilities of DTC.

Appears in 2 contracts

Samples: Underwriting Agreement (O Reilly Automotive Inc), Underwriting Agreement (OC Holding Company, LLC)

Covenants of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, covenant and agree with each Underwriter that: (a) The Company and the Guarantors (i) will prepare the Prospectus in a form approved by the Representatives and file the Prospectus pursuant to Rule 424(b) of the Rules and Regulations within the time period prescribed by such Rule; (ii) will not file any amendment or supplement to the Registration Statement or the Prospectus or file any document under the Exchange Act before the termination of the offering of the Notes by the Underwriters 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 notice thereof (such consent not to be unreasonably withheld or delayed); (iii) will advise the Representatives, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement, the most recent Preliminary Prospectus or the Prospectus has been filed; (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; (v) will advise the Representatives promptly after it receives notice thereof, in each case, of the issuance by the Commission or any state or other regulatory body of any stop order or any order suspending the effectiveness of the Registration Statement, suspending or preventing the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or suspending the qualification of the Notes ~~or the Guarantees~~ for offering or sale in any jurisdiction, of the initiation or threatening of any proceedings for any such purpose or pursuant to Section 8A of the Securities Act, of receipt by the Company or any Guarantor 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 (vi) will use its reasonable best efforts to prevent the issuance of any stop order or other such order or any such notice of objection and, if a 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) If, at any time prior to completion of the distribution of the Notes, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the opinion of the Representatives or counsel for the Underwriters, should be set forth in the Disclosure Package or the Prospectus so that the Disclosure Package or the Prospectus, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Disclosure Package or the Prospectus in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Representatives and counsel for the Underwriters a reasonable number of copies thereof. (c) The Company and the Guarantors will furnish to each of the Representatives and to counsel for the Underwriters such number of conformed copies of the Registration Statement, as originally filed and each amendment thereto (excluding exhibits), any Preliminary Prospectus, the Final Term Sheet and any other Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements to any of such documents (other than any document filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, any Preliminary Prospectus or the Prospectus), in each case as soon as available and in such quantities as the Representatives may from time to time reasonably request. (d) During the period in which the Prospectus relating to the Notes and the Guarantees (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is required to be delivered under the Securities Act, the Company and the Guarantors will comply with all requirements imposed upon it by the Securities Act and by the Rules and Regulations, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Notes as contemplated by the provisions of this Agreement and by the Prospectus. If during such period any event occurs as a result of which the Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or 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 the Securities Act, the Company and the Guarantors will promptly notify the Representatives and will, subject to Section 4(a) hereof, amend the Registration Statement, amend or supplement the Disclosure Package or the Prospectus, as the case may be, or file any document (in each case, at the expense of the Company and the Guarantors) so as to correct such statement or omission or to effect such compliance, and will furnish without charge to each Underwriter as many written and electronic copies of any such amendment or supplement as the Representatives may from time to time reasonably request. (e) As soon as practicable, the Company will make generally available to its security holders and the Underwriters an earnings statement satisfying the requirements of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (f) The Company and the Guarantors jointly and severally agree, whether or not this Agreement becomes effective or 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 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 and the Guarantors’ counsel; (v) the qualification of the Notes and the Guarantees 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 reasonable expenses of counsel to the Underwriters); (vi) any rating of the Notes by rating agencies; (vii) the reasonable fees and expenses of counsel for the Underwriters in connection with its review of the offering’s compliance with FINRA rules and the filing fees incident to FINRA’s review, if any, and approval of the Underwriters’ participation in the offering and distribution of the Notes (it being understood that the expenses described in clause (v) and this clause (vii) of this Section 4(f) shall not exceed, in the aggregate, $10,000); (viii) the services of the Trustee and any agent of the Trustee (including the fees and disbursements of counsel for the Trustee); (ix) any “road show” or other investor presentations relating to the offering of the Notes; and (x) otherwise incident to the performance by the Company and the Guarantors of their obligations hereunder for which provision is not otherwise made in this Section 4(f). It is understood, however, that, except as provided in this Section 4(f) or Sections 7 and 9 hereof, the Underwriters will pay all of their own costs and expenses, including the fees and expenses of counsel to the Underwriters and any advertising expenses incurred in connection with the offering of the Notes. (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 in the manner set forth in the most recent Preliminary Prospectus and the Prospectus. (i) During the period beginning on the date hereof and continuing to and including the Closing Date, neither the Company nor any Guarantor will, 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 and the Guarantees (including, without limitation, with respect to the maturity, currency, interest rate and other material terms thereof). (j) The Company and the Guarantors will pay the required Commission filing fees relating to the Notes and the Guarantees 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) If required by Rule 430B(h) of the Rules and Regulations, the Company and the Guarantors 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 Company and the Guarantors will not file any amendment or supplement to such prospectus, which filing is not consented to by the Representatives promptly after reasonable notice thereof (such consent not to be unreasonably withheld or delayed). (l) The Company and the Guarantors will cooperate with the Representatives and with counsel to the Underwriters in connection with the qualification of the Notes ~~and the Guarantees~~ for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Underwriters may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualification and to permit the continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the distribution of the ~~Notes and the Guarantees~~Notes; provided, however, that in no event will either the Company or the Guarantors be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than for actions or proceedings arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject. (m) Neither the Company nor any of the Guarantors will take, directly or indirectly, any action designed to cause or result in, or which could reasonably be expected to cause or result in, the 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 letter of the Company to DTC relating to the acceptance of the Notes for “book-entry” transfer through the facilities of DTC.

Appears in 2 contracts

Samples: Underwriting Agreement (O Reilly Automotive Inc), Underwriting Agreement (OC Holding Company, LLC)

Covenants of the Company and the Guarantors. The Company and ~~each of~~ the Guarantors, jointly and severally, covenant and agree with each ~~Underwriter~~ of the Underwriters that: (a) The Company will furnish to the Underwriters and to Cadwalader, Wickersham & Taft, counsel for the ~~Guarantors~~ Underwriters, as soon as reasonably xxxxxxxx, wixxxxt charge, during the period referred to in paragraph (ic) ~~will prepare~~ below, as many copies as they may reasonably request of the Registration Statement and any amendments and supplements thereto filed prior to the date hereof or relating to or covering the Securities and of the Prospectus ~~in a form approved~~ filed with the SEC, including all documents incorporated therein by reference and all consents and exhibits filed therewith, and will file with the ~~Representatives and file the Prospectus~~ SEC pursuant to Rule ~~424(b)~~ 424 a prospectus supplement, in form and substance satisfactory to the Underwriters and their counsel, relating to the offering contemplated hereby no later than the close of business on September - , 2002. The Company will pay the expenses of printing or other production of all documents relating to the offering of the ~~Rules and Regulations within the time period prescribed by such Rule;~~ Securities. (iib) The Company will not amend or supplement the Registration Statement or Prospectus or file any document incorporated by reference in any of the foregoing or any amendment or supplement to any such incorporated document during the ~~Registration Statement or~~ period referred to in paragraph (c) of this Section 4 without the ~~Prospectus or file any document under the Exchange Act before the termination~~ prior written consent of the ~~offering~~ Underwriters. (c) During the period following the date hereof as, in the opinion of Cadwalader, Wickersham & Taft, counsel for the Notes by the Underwriters 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 notice thereof (such consent not to be unreasonably withheld or delayed); (iii) will advise the Representatives, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration StatementUnderwriters, the ~~most recent Preliminary Prospectus or the Prospectus has been filed; (iv) will prepare the Final Term Sheet~~Prospxxxxx xx xeqxxxxx xx xaw xx xe delivered, ~~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; (v) will advise the Representatives promptly after it receives notice thereof, in each case, of the issuance by the Commission or any state or other regulatory body of any stop order or any order suspending the effectiveness of the Registration Statement, suspending or preventing the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or suspending the qualification of the Notes or the Guarantees for offering or sale in any jurisdiction, of the initiation or threatening of any proceedings for any such purpose or pursuant to Section 8A of comply with the Securities Act, ~~of receipt by~~ the Company or any Guarantor 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 StatementExchange Act, the ~~Prospectus or any Issuer Free Writing Prospectus or for additional information;~~ Trust Indenture Act and ~~(vi) will use its reasonable best efforts~~ the rules and regulations under each thereof, so as to ~~prevent~~ permit the issuance of any stop order or other such order or any such notice of objection and, if a 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) If, at any time prior to completion of the distribution of the ~~Notes~~Securities as contemplated in this Agreement and in the Prospectus. If at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Securities, any event occurs or ~~information becomes known that~~condition exists as a result of which, in the ~~judgment of the Company or any of the Guarantors or in the~~ reasonable opinion of ~~the Representatives or~~ Cadwalader, Wickersham & Taft, counsel for the Underwriters, ~~should be set forth in the Disclosure Package~~ or ~~the Prospectus so that the Disclosure Package or the Prospectus~~Proskaxxx Xxxx XLP, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Disclosure Package or the Prospectus in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Representatives and counsel xxxxxxx couxxxx for the Underwriters a reasonable number of copies thereof. (c) The Company and the Guarantors will furnish to each of the Representatives and to counsel for the Underwriters such number of conformed copies of the Registration Statement, as originally filed and each amendment thereto (excluding exhibits), any Preliminary Prospectus, the Final Term Sheet and any other Issuer Free Writing ProspectusCompany, the Prospectus ~~and all amendments and supplements to~~ will include any of such documents (other than any document filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, any Preliminary Prospectus or the Prospectus), in each case as soon as available and in such quantities as the Representatives may from time to time reasonably request. (d) During the period in which the Prospectus relating to the Notes and the Guarantees (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is required to be delivered under the Securities Act, the Company and the Guarantors will comply with all requirements imposed upon it by the Securities Act and by the Rules and Regulations, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Notes as contemplated by the provisions of this Agreement and by the Prospectus. If during such period any event occurs as a result of which the Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein, in ~~the~~ light of the circumstances ~~then existing~~under which they were made when such Prospectus is delivered to a purchaser, not misleading, or if ~~during~~ it should otherwise be necessary, in the opinion of such ~~period it is necessary~~ counsel, at any time to amend the Registration Statement or amend or supplement the ~~Disclosure Package or the~~ Prospectus ~~or file any document~~ in order to comply with the requirements of the Securities ~~Act~~Act or the rules and regulations thereunder, the Company ~~and the Guarantors~~ will promptly (i) notify the ~~Representatives and will,~~ Underwriters of the same; (ii) subject to the requirements of paragraph (b) of this Section ~~4(a) hereof~~4, ~~amend~~ will prepare and file with the ~~Registration Statement~~SEC, ~~amend~~ an amendment or supplement ~~the Disclosure Package or the Prospectus, as the case may be, or file any document (in each case, at the expense of the Company and the Guarantors) so as to~~ that will correct such statement or omission or to effect such ~~compliance~~compliance of the Registration Statement or the Prospectus with such requirements; and (iii) will supply any supplemented or amended Prospectus to the several Underwriters and counsel for the Underwriters in accordance with paragraph (a) of this Section 4. The Company will not take any action on or prior to the Closing Date that would require the Prospectus to be amended or supplemented pursuant to this Section 4(c). (d) The Company shall advise the Underwriters promptly (i) when any post-effective amendment to the Registration Statement relating to or covering the Securities becomes effective or any supplement to the Prospectus shall have been filed, ~~and will furnish without charge to each Underwriter as many written and electronic copies~~ (ii) of any ~~such~~ comments from the SEC or any request or proposed request by the SEC for an amendment or supplement to the Registration Statement (insofar as the ~~Representatives may from time~~ amendment or supplement relates to ~~time reasonably request~~or covers the Securities), to the Prospectus to any document incorporated by reference in any of the foregoing or for any additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or any order directed to the Prospectus or any document incorporated therein by reference or the initiation or threat of any stop order proceeding or of any challenge to the accuracy or adequacy of any document incorporated by reference in any Prospectus and (iv) of the happening of any event which makes untrue any statement of a material fact made in the Registration Statement or the Prospectus or which requires the making of a change in the Registration Statement or the Prospectus in order to make any material statement therein not misleading. (e) ~~As soon as practicable~~If, during the period referred to in paragraph (c) of this Section 4, the SEC shall issue a stop order suspending the effectiveness of the Registration Statement, the Company ~~will~~ shall make ~~generally available~~ every reasonable effort to ~~its security holders and~~ obtain the ~~Underwriters an earnings statement satisfying~~ lifting of that order at the ~~requirements of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations~~earliest possible time. (f) The Company ~~and the Guarantors jointly and severally agree, whether or not this Agreement becomes effective or is terminated or the sale of the Notes to the Underwriters is consummated, to pay~~ shall file promptly 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 reports and any ~~amendments~~ definitive proxy or 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 and the Guarantors’ counsel; (v) the qualification of the Notes and the Guarantees 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 reasonable expenses of counsel to the Underwriters); (vi) any rating of the Notes by rating agencies; (vii) the reasonable fees and expenses of counsel for the Underwriters in connection with its review of the offering’s compliance with FINRA rules and the filing fees incident to FINRA’s review, if any, and approval of the Underwriters’ participation in the offering and distribution of the Notes (it being understood that the expenses described in clause (v) and this clause (vii) of this Section 4(f) shall not exceed, in the aggregate, $10,000); (viii) the services of the Trustee and any agent of the Trustee (including the fees and disbursements of counsel for the Trustee); (ix) any “road show” or other investor presentations relating to the offering of the Notes; and (x) otherwise incident to the performance by the Company and the Guarantors of their obligations hereunder for which provision is not otherwise made in this Section 4(f). It is understood, however, that, except as provided in this Section 4(f) or Sections 7 and 9 hereof, the Underwriters will pay all of their own costs and expenses, including the fees and expenses of counsel to the Underwriters and any advertising expenses incurred in connection with the offering of the Notes. (g) Until completion of the distribution of the Notes, the Company will timely file all reports, documents and amendments to previously filed documents information statements required to be filed by it the Company with the SEC pursuant to Section ~~12,~~ 13(a), 13(c), 14 or 15(d) of the Exchange ~~Act~~Act subsequent to the date of the Prospectus and for so long as the delivery of a Prospectus is required in connection with the offering and sale of the Securities. (g) The Company shall furnish to the Underwriters promptly upon written request, copies of any annual reports, quarterly reports and current reports filed by the Company with the SEC and such other documents, reports and information as shall be furnished by the Company to the Trustee or to the holders of the Securities pursuant to the Indenture or the Exchange Act or any rule or regulation of the SEC thereunder. (h) The Company shall make generally available to its security holders and to the Underwriters as soon as practicable an earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the effective date of the Registration Statement, which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder. (i) The Company will from time to time take such actions to arrange for the qualification of the Securities for offering and sale under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the resale of the Securities; provided, however, that the Company will not be required to qualify to do business in any jurisdiction in which it is not then so qualified, to file any general consent to service of process or to take any other action which would subject it to general service of process or to taxation in any such jurisdiction where it is not then so subject. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. (j) The Company, whenever it or any of the Subsidiaries publishes or makes available to the public (by filing with any regulatory authority or securities exchange or by publishing a press release or otherwise) any information that would reasonably be expected to be material in the context of the issue of the Securities under this Agreement, shall promptly notify the Underwriters as to the nature of such information or event; provided, however that prior to the Closing Date, the Company shall obtain the written consent of the Underwriters prior to such publication or other communication of such information to the public, unless in the judgment of the Company and its counsel, and after notification to the Underwriters, such publication or communication is required by law. The Company will likewise notify the Underwriters of (i) any decrease in the rating of the Securities or any other debt securities of the Company by any nationally recognized statistical rating organization (as defined in Rule 436(g)(2) under the Securities Act) or (ii) any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change, as soon as the Company becomes aware of any such decrease or notice. The Company will also deliver to the Underwriters, as soon as available and without request, copies of its latest yearly and quarterly financial statements and any report of its auditors thereon. (k) The Company and the Guarantors (to the extent a party thereto) will do and perform all things required to be done and performed by them under this Agreement and the Transaction Documents prior to or after the Closing Date and to satisfy all conditions precedent on their part to the obligations of the Underwriters to purchase and accept delivery of the Securities. (l) In connection with the offering of the Securities, the Company shall make its officers, employees, independent accountants and legal counsel reasonably available upon request by the Underwriters and to cooperate with the Underwriters and Underwriters' counsel with their due diligence review through the Closing Date; (m) The Company will cooperate with the Underwriters and use its best efforts to permit the Securities to be eligible for clearance and settlement as described under "Book-Entry; Delivery and Form" in the Prospectus. (n) The Company will apply the net proceeds from the sale of the ~~Notes in the manner~~ Securities as set forth under "Use of Proceeds" in ~~the most recent Preliminary Prospectus and~~ the Prospectus. (io) ~~During~~ Without the ~~period beginning~~ prior written consent of Wachovia Securities, Inc. on behalf of the ~~date hereof and continuing to and including the Closing Date~~Underwriters, neither the Company nor any ~~Guarantor~~ of the Subsidiaries will, ~~without~~ for a period of 180 days following the ~~prior written consent~~ date hereof, offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any Affiliate of the ~~Representatives~~Company or any person in privity with the Company or any Affiliate of the Company), directly or indirectly, ~~issue~~or file a registration statement for, ~~sell~~or announce the offer, ~~offer to sell~~sale, ~~grant any option~~ contract for ~~the~~ sale of or ~~otherwise dispose~~ other disposition of, any debt securities ~~that are substantially similar to~~ issued or guaranteed by the ~~Notes and~~ Company or any of the ~~Guarantees~~ Subsidiaries (~~including, without limitation, with respect to~~ other than the ~~maturity, currency, interest rate and other material terms thereof~~Securities). (j) The Company and the Guarantors will pay the required Commission filing fees relating to the Notes and the Guarantees 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) If required by Rule 430B(h) of the Rules and Regulations, the Company and the Guarantors 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 Company and the Guarantors will not file any amendment or supplement to such prospectus, which filing is not consented to by the Representatives promptly after reasonable notice thereof (such consent not to be unreasonably withheld or delayed). (l) The Company and the Guarantors will cooperate with the Representatives and with counsel to the Underwriters in connection with the qualification of the Notes and the Guarantees for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Underwriters may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualification and to permit the continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the distribution of the Notes and the Guarantees; provided, however, that in no event will either the Company or the Guarantors be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than for actions or proceedings arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject. (mp) Neither the Company nor any of ~~the Guarantors~~ its Affiliates will take, directly or indirectly, any action designed to cause or result in, or which ~~could~~ has constituted or which might reasonably be expected to cause or result in, ~~the~~ stabilization or manipulation of the price of any security of the ~~Notes~~ Company to facilitate the sale or resale of the ~~Notes~~Securities. (nq) The Company and the Subsidiaries will ~~comply with all agreements set forth~~ conduct its or their operations in a manner that will not subject the ~~representation letter~~ Company or any of the Subsidiaries to registration as an investment company under the Investment Company ~~to DTC relating to the acceptance of the Notes for “book-entry” transfer through the facilities of DTC~~Act.

Appears in 1 contract

Samples: Underwriting Agreement (Gray Television Inc)

Covenants of the Company and the Guarantors. The Company and ~~each of~~ the ~~Guarantors,~~ Guarantors jointly and ~~severally,~~ severally covenant and agree with ~~each Underwriter~~ the several Underwriters that: (a) The Company will (A) prepare and timely file with the ~~Guarantors~~ Commission under Rule 424(b) (iwithout reliance on Rule 424(b)(8)) ~~will prepare~~ under the Act a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A, 430B or 430C under the Act, (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus or document incorporated by reference therein of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and during the Prospectus Delivery Period (as defined below). (b) The Company will (i) not make any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed only to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule II hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 163, 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not 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 Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. (c) The Company will prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms of the Notes, in form and substance satisfactory to the Representatives, and shall file such Final Term Sheet as an Issuer Free Writing Prospectus pursuant to Rule ~~424(b~~433 under the Act prior to the close of business two business days after the date hereof; provided that the Company shall provide the Representatives with copies of any such Final Term Sheet a reasonable amount of time prior to such proposed filing and will not use or file any such document to which the Representatives or counsel to the Underwriters shall reasonably object. (d) The Company will advise the Representatives promptly (A) when any post-effective amendment to the Registration Statement or new registration statement relating to the Notes and the Guarantees shall have become effective, or any supplement to the Prospectus shall have been filed, (B) of the ~~Rules and Regulations within~~ receipt of any comments from the ~~time period prescribed by such Rule;~~ Commission, (iiC) ~~will not file~~ of any request of the Commission for amendment of the Registration Statement or the filing of a new registration statement or any amendment or supplement to the ~~Registration Statement~~ General Disclosure Package or the Prospectus or ~~file~~ any document ~~under the Exchange Act before the termination of the offering of the Notes~~ incorporated by ~~the Underwriters if such document would be~~ reference therein or otherwise deemed to be ~~incorporated by reference into the Prospectus~~a part thereof or for any additional information, ~~which filing is not consented to by the Representatives after reasonable notice thereof~~ and (~~such consent not to be unreasonably withheld or delayed); (iii~~D) will advise the Representatives, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement, the most recent Preliminary Prospectus or the Prospectus has been filed; (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; (v) will advise the Representatives promptly after it receives notice thereof, in each case, of the issuance by the Commission ~~or any state or other regulatory body~~ of any stop ~~order or any~~ order suspending the effectiveness of the Registration ~~Statement,~~ Statement or such new registration statement or any order preventing or suspending ~~or preventing~~ the use of any Preliminary Prospectus, ~~the Prospectus or~~ any Issuer Free Writing Prospectus or ~~suspending~~ the ~~qualification~~ Prospectus, or of the ~~Notes or the Guarantees for offering or sale in any jurisdiction, of the initiation or threatening~~ institution of any proceedings for ~~any such~~ that purpose or pursuant to Section 8A of the ~~Securities~~ Act~~, of receipt by the~~ . The Company or any Guarantor 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 (vi) will use its ~~reasonable~~ best efforts to prevent the issuance of any ~~stop order or other~~ such order ~~or any such notice of objection and, if a stop order or other such order is issued or any such notice of objection is received,~~ and to obtain as soon as possible the lifting ~~or withdrawal~~ thereof, if issued. (be) ~~If,~~ If at any time ~~prior to completion of~~ during the ~~distribution of the Notes, any event occurs or information becomes known that, in the judgment of~~ Prospectus Delivery Period the Company receives from the Commission a notice pursuant to Rule 401(g)(2) under the Act or ~~any of~~ otherwise ceases to be eligible to use the Guarantors or in the opinion of the Representatives or counsel for the Underwriters, should be set forth in the Disclosure Package or the Prospectus so that the Disclosure Package or the Prospectus, as then amended or supplemented, does not include any untrue automatic shelf registration statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Disclosure Package or the Prospectus in order to comply with any lawform, the Company will (i) promptly notify the Representatives, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Notes and the ~~Guarantors will forthwith prepare an appropriate supplement~~ Guarantees, in a form satisfactory to the Representatives, (iii) use its best efforts to cause such registration statement or post-effective amendment ~~thereto~~to be declared effective as soon as practicable (if such filing is not otherwise effective immediately pursuant to Rule 462 under the Act), and ~~will expeditiously furnish to~~ (iv) promptly notify the Representatives ~~and counsel for the Underwriters a reasonable number~~ of ~~copies thereof. (c)~~ such effectiveness. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Notes and the ~~Guarantors will furnish~~ Guarantees to ~~each of the Representatives and to counsel for the Underwriters such number of conformed copies of the Registration Statement,~~ continue as originally filed and each amendment thereto (excluding exhibits), any Preliminary Prospectus, the Final Term Sheet and any other Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements to any of such documents (other than any document filed under the Exchange Act and deemed to be incorporated by reference contemplated in the Registration ~~Statement, any Preliminary Prospectus~~ Statement that was the subject of the notice under Rule 401(g)(2) under the Act or ~~the Prospectus), in each case as soon as available and in such quantities as the Representatives may from time to time reasonably request. (d) During the period in~~ for which the ~~Prospectus~~ Company has otherwise become ineligible. References herein to the Registration Statement relating to the Notes and the Guarantees (shall include such new registration statement or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is required to be delivered under the Securities Act, the Company and the Guarantors will comply with all requirements imposed upon it by the Securities Act and by the Rules and Regulations, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Notes as contemplated by the provisions of this Agreement and by the Prospectus. If during such period any event occurs as a result of which the Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or 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 the Securities Act, the Company and the Guarantors will promptly notify the Representatives and will, subject to Section 4(a) hereof, amend the Registration Statement, amend or supplement the Disclosure Package or the Prospectuspost-effective amendment, as the case may be, or file any document (in each case, at the expense of the Company and the Guarantors) so as to correct such statement or omission or to effect such compliance, and will furnish without charge to each Underwriter as many written and electronic copies of any such amendment or supplement as the Representatives may from time to time reasonably request. (e) As soon as practicable, the Company will make generally available to its security holders and the Underwriters an earnings statement satisfying the requirements of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (f) If immediately prior to the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration Statement, any of the Notes remain unsold by the Underwriters, the Company will, prior to the Renewal Deadline, file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Notes, in a form satisfactory to the Representatives. If the Company is no longer eligible to file an automatic shelf registration statement, the Company will, prior to the Renewal Deadline, if it has not already done so, file a new shelf registration statement relating to the Notes, in a form satisfactory to the Representatives, and will use its best efforts to cause such registration statement to be declared effective within 180 days after the Renewal Deadline. The Company will take all other action necessary or appropriate to permit the public offering and ~~the Guarantors jointly and severally agree, whether or not this Agreement becomes effective or is terminated or the~~ sale of the Notes to continue as contemplated in the ~~Underwriters is consummated,~~ expired registration statement. References herein 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)~~shall include such new automatic shelf registration statement or such new shelf registration statement, ~~any Preliminary Prospectus, any Issuer Free Writing Prospectus,~~ as the Prospectus and any amendments or 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 and the Guarantors’ counsel; (v) the qualification of the Notes and the Guarantees 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 reasonable expenses of counsel to the Underwriters); (vi) any rating of the Notes by rating agencies; (vii) the reasonable fees and expenses of counsel for the Underwriters in connection with its review of the offering’s compliance with FINRA rules and the filing fees incident to FINRA’s review, if any, and approval of the Underwriters’ participation in the offering and distribution of the Notes (it being understood that the expenses described in clause (v) and this clause (vii) of this Section 4(f) shall not exceed, in the aggregate, $10,000); (viii) the services of the Trustee and any agent of the Trustee (including the fees and disbursements of counsel for the Trustee); (ix) any “road show” or other investor presentations relating to the offering of the Notes; and (x) otherwise incident to the performance by the Company and the Guarantors of their obligations hereunder for which provision is not otherwise made in this Section 4(f). It is understood, however, that, except as provided in this Section 4(f) or Sections 7 and 9 hereof, the Underwriters will pay all of their own costs and expenses, including the fees and expenses of counsel to the Underwriters and any advertising expenses incurred in connection with the offering of the Notescase may be. (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 in the manner set forth in the most recent Preliminary Prospectus and the Prospectus. (i) During the period beginning on the date hereof and continuing agrees to and including the Closing Date, neither the Company nor any Guarantor will, 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 and the Guarantees (including, without limitation, with respect to the maturity, currency, interest rate and other material terms thereof). (j) The Company and the Guarantors will pay the required ~~Commission~~ filing fees to the Commission relating to the Notes ~~and the Guarantees~~ within the time ~~period~~ required by Rule 456(b)(1) of under the ~~Rules and Regulations~~ Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of under the ~~Rules and Regulations~~Act. (k) If required by Rule 430B(h) of the Rules and Regulations, the Company and the Guarantors 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 Company and the Guarantors will not file any amendment or supplement to such prospectus, which filing is not consented to by the Representatives promptly after reasonable notice thereof (such consent not to be unreasonably withheld or delayed). (lh) The Company ~~and the Guarantors~~ will cooperate with the Representatives ~~and with counsel~~ in endeavoring to ~~the Underwriters in connection with the qualification of~~ qualify the Notes and the Guarantees for ~~offering and~~ sale ~~by the Underwriters and by dealers~~ under the securities laws of such jurisdictions as the ~~Underwriters~~ Representatives may ~~designate~~ reasonably have designated in writing and will make such applications, file such ~~consents~~ documents, and furnish such information as may be reasonably required for that purpose; provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process or other documents necessary or appropriate in order to effect such qualification and to permit the continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the distribution of the Notes and the Guarantees; provided, however, that in no event will either the Company or the Guarantors be obligated to qualify to do business in any jurisdiction where it is not now so qualified or required to ~~take any action which would subject it~~ file such a consent. The Company will, from time to ~~service of process~~ time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in ~~suits, other than~~ effect for ~~actions or proceedings arising out of~~ so long a period as the ~~offering or sale~~ Representatives may reasonably request for distribution of the Notes. (i) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required under the Act (the “Prospectus Delivery Period”), as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request. (j) The Company will comply with the Act, the Rules and Regulations, the Exchange Act and the Trust Indenture Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Notes as contemplated in this Agreement and the Prospectus. If during the Prospectus Delivery Period any ~~jurisdiction where~~ event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law. (k) If the General Disclosure Package is being used to solicit offers to buy the Notes at a time when the Prospectus is not ~~now~~ yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes 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 to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any applicable law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so ~~subject~~that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with applicable law. (l) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement (which need not be audited) in reasonable detail, complying with the requirements of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made available. (m) ~~Neither~~ During the period beginning on the date hereof and continuing to the date that is 90 days after the Closing Date, without the prior written consent of Deutsche Bank Securities Inc., the Company ~~nor~~ will not offer, sell, contract to sell or otherwise dispose of, except as provided hereunder, any securities of the Company (or guaranteed by the Company) or the Guarantor (or guaranteed by the Guarantor) that are substantially similar to the Notes. (n) The Company shall apply the net proceeds of its sale of the Notes as set forth in the Registration Statement, the General Disclosure Package and the Prospectus. (o) The Company shall not invest, or otherwise use, the proceeds received by the Company from its sale of the Notes in such a manner as would require the Company or any of the ~~Guarantors~~ Subsidiaries to register as an investment company under the 1940 Act. (p) The Company will not take, directly or indirectly, any action designed to cause or result in, or ~~which could~~ that has constituted or might reasonably be expected to ~~cause or result in~~constitute, the stabilization or manipulation of the price of ~~the Notes to facilitate the sale or resale~~ any securities of the ~~Notes~~Company. (n) The Company will comply with all agreements set forth in the representation letter of the Company to DTC relating to the acceptance of the Notes for “book-entry” transfer through the facilities of DTC.

Appears in 1 contract

Samples: Underwriting Agreement (J.B. Hunt Transport, Inc.)

Covenants of the Company and the Guarantors. ~~The~~ Each of the Company and ~~each of~~ the ~~Guarantors, jointly and severally, covenant and agree~~ Guarantors covenants with ~~each Underwriter~~ the Initial Purchaser that: (a) The Company and the Guarantors will furnish to the Initial Purchaser and counsel for the Initial Purchaser, without charge, during the period mentioned in paragraph (id) ~~will prepare the Prospectus in a form approved by the Representatives and file the Prospectus pursuant to Rule 424(b)~~ below, as many copies of the ~~Rules~~ Offering Memorandum, any documents incorporated by reference therein (other than exhibits thereto) and ~~Regulations within~~ any supplements or amendments thereto as it may reasonably request. (b) The Company and the ~~time period prescribed by such Rule; (ii)~~ Guarantors will ~~not file any~~ furnish to the Initial Purchaser a copy of each proposed amendment or supplement to the ~~Registration Statement~~ Offering Memorandum, and not use any such proposed amendment or supplement to which the ~~Prospectus or~~ Initial Purchaser reasonably objects in writing; after the date hereof and prior to the completion of the distribution of the Securities by the Initial Purchaser (as determined by the Initial Purchaser), neither the Company nor any Guarantor will file any document under the Exchange Act ~~before the termination of the offering of the Notes by the Underwriters if such document would be deemed to be~~ which is incorporated by reference in the Offering Memorandum, in each case unless the Initial Purchaser previously has been advised of, and furnished with a copy within a reasonable period of time prior to, the proposed filing, and if such proposed filing contains material non-public information, the Initial Purchaser agrees to enter into ~~the Prospectus, which filing is not consented~~ a confidentiality agreement with respect to such information if reasonably requested by the ~~Representatives after reasonable notice thereof (such consent not to be unreasonably withheld or delayed); (iii)~~ Company. The Company and the Guarantors will advise the ~~Representatives, promptly after it receives notice thereof,~~ Initial Purchaser of the time when any amendment or supplement to the ~~Registration Statement, the most recent Preliminary Prospectus or the Prospectus~~ Offering Memorandum has been ~~filed; (iv) will prepare~~ made or when any document filed under the ~~Final Term Sheet, substantially~~ Exchange Act which is incorporated by reference 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; (v) will advise the Representatives promptly after it receives notice thereof, in each case, of the issuance by Offering Memorandum has been filed with the Commission or any state or other regulatory body of any stop order or any order suspending the effectiveness of the Registration Statement, suspending or preventing the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or suspending the qualification of the Notes or the Guarantees for offering or sale in any jurisdiction, of the initiation or threatening of any proceedings for any such purpose or pursuant to Section 8A of the Securities Act, of receipt by the Company or any Guarantor from the Commission of any notice of objection and will provide evidence satisfactory to the ~~use~~ Initial Purchaser of ~~the Registration Statement~~ each such amendment, supplement 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 (vi) will use its reasonable best efforts to prevent the issuance of any stop order or other such order or any such notice of objection and, if a 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 thereoffiling. (bc) IfThe Company and the Guarantors will cooperate with the Initial Purchaser in endeavoring to qualify the Securities and Guarantees for sale under the securities laws of such jurisdictions as the Initial Purchaser may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided that neither the Company nor the Guarantors shall be required to qualify as a foreign corporation or other foreign entity or to file a general consent to service of process in any jurisdiction (i) where it is not now so qualified or required to file such a consent or (ii) where it is not now subject to taxation but would become subject to taxation as a result of such qualification or filing. The Company and the Guarantors will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Initial Purchaser may reasonably request for distribution of the Securities. (d) If at any time prior to ~~completion~~ the date on which all of the ~~distribution of~~ Securities shall have been sold by the ~~Notes~~Initial Purchaser, any event ~~occurs or information becomes known that~~shall occur as a result of which, in the judgment of the Company or ~~any of the Guarantors or~~ in the reasonable opinion of the ~~Representatives~~ Initial Purchaser, it becomes necessary to amend or ~~counsel for~~ supplement the Underwriters, should be set forth in the Disclosure Package or the Prospectus so that the Disclosure Package or the Prospectus, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary Offering Memorandum in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or or, if it is necessary at any time to amend or supplement ~~or amend~~ the ~~Disclosure Package or the Prospectus in order~~ Offering Memorandum to comply with ~~any~~ applicable law, the Company and the Guarantors will ~~forthwith~~ promptly prepare an appropriate amendment or supplement to the Offering Memorandum so that the Offering Memorandum as so amended or ~~amendment thereto~~supplemented will not contain statements that, in the light of the circumstances under which they were made, are misleading, or so that the Offering Memorandum will comply with applicable law. (e) No offering, sale, short sale or other disposition of any shares of Common Stock or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 60 days after the date of the Offering Memorandum, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of the Initial Purchaser. The foregoing sentence shall not apply to the issuance by the Company of any shares of Common Stock upon (A) the exercise of outstanding options or warrants or options issued pursuant to the Company's existing or former stock option plans, or the Company's proposed incentive plan, described in the Offering Memorandum, (B) the conversion of the Securities, or (C) the entering into of matching transactions pursuant to the Company's 401(k) plan. (f) The Company shall have caused each executive officer and ~~will expeditiously~~ director of the Company to furnish to the ~~Representatives~~ Initial Purchaser, dated the date of this agreement, a letter or letters, in form and ~~counsel~~ substance satisfactory to the Initial Purchaser, pursuant to which each such person shall agree not to offer, sell, sell short or otherwise dispose of any shares of Common Stock or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by such person or request the registration for the ~~Underwriters~~ offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a ~~reasonable number~~ period of ~~copies thereof~~60 days after the date of the Offering Memorandum, directly or indirectly, except with the prior written consent of the Initial Purchaser ("Lockup Agreements"). (cg) ~~The~~ Neither the Company ~~and~~ nor any Guarantor will, nor will it permit any of its Affiliates (as defined in Rule 501(b) under the ~~Guarantors will furnish to each~~ Securities Act) to, during the two-year period following the closing of the ~~Representatives and to counsel for the Underwriters such number of conformed copies of the Registration Statement~~Offering, ~~as originally filed and each amendment thereto (excluding exhibits),~~ resell any ~~Preliminary Prospectus, the Final Term Sheet and any other Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements to~~ Securities that have been acquired by any of such documents (other than any document filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, any Preliminary Prospectus or the Prospectus), in each case as soon as available and in such quantities as the Representatives may from time to time reasonably requestthem. (dh) ~~During~~ Except as contemplated by the ~~period in which~~ Registration Rights Agreement, none of the ~~Prospectus relating~~ Company, the Guarantors, any of their respective Affiliates, or any authorized person acting on its or their behalf will, directly or indirectly, make offers or sales of any security, or solicit offers to buy any security, under circumstances that would require the ~~Notes and~~ registration of the Securities, the Guarantees or the Underlying Securities issuable upon conversion of the Securities under the Securities Act. (~~or in lieu thereof~~i) None of the Company, the ~~notice referred to~~ Guarantors, any of their respective Affiliates, or any person acting on its or their behalf will engage in any form of general solicitation or general advertising (as those terms are used in Rule ~~173(a~~502(c) under the Securities Act) in connection with any offer or sale of the ~~Rules and Regulations~~Securities or the Guarantees in the United States. (j) ~~is required to be delivered~~ So long as any of the Securities, the Guarantees or the Underlying Securities issuable upon conversion of the Securities are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, the Company and the Guarantors ~~will comply with all requirements imposed upon it by the Securities Act and by the Rules and Regulations~~will, ~~as from time to time~~ during any period in force, so far as is necessary to permit the continuance of sales of or dealings in the Notes as contemplated by the provisions of this Agreement and by the Prospectus. If during such period any event occurs as a result of which the Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or 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 the Securities Act, the Company and the Guarantors will promptly notify the Representatives and will, not subject to ~~Section 4(a) hereof, amend the Registration Statement, amend or supplement the Disclosure Package or the Prospectus, as the case may be, or file any document (~~and in each case, at the expense of the Company and the Guarantors) so as to correct such statement or omission or to effect such compliance, and will furnish without charge to each Underwriter as many written and electronic copies of any such amendment or supplement as the Representatives may from time to time reasonably request. (e) As soon as practicable, the Company will make generally available to its security holders and the Underwriters an earnings statement satisfying the requirements of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (f) The Company and the Guarantors jointly and severally agree, whether or not this Agreement becomes effective or 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 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 and the Guarantors’ counsel; (v) the qualification of the Notes and the Guarantees 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 reasonable expenses of counsel to the Underwriters); (vi) any rating of the Notes by rating agencies; (vii) the reasonable fees and expenses of counsel for the Underwriters in connection with its review of the offering’s compliance with FINRA rules and the filing fees incident to FINRA’s review, if any, and approval of the Underwriters’ participation in the offering and distribution of the Notes (it being understood that the expenses described in clause (v) and this clause (vii) of this Section 4(f) shall not exceed, in the aggregate, $10,000); (viii) the services of the Trustee and any agent of the Trustee (including the fees and disbursements of counsel for the Trustee); (ix) any “road show” or other investor presentations relating to the offering of the Notes; and (x) otherwise incident to the performance by the Company and the Guarantors of their obligations hereunder for which provision is not otherwise made in this Section 4(f). It is understood, however, that, except as provided in this Section 4(f) or Sections 7 and 9 hereof, the Underwriters will pay all of their own costs and expenses, including the fees and expenses of counsel to the Underwriters and any advertising expenses incurred in connection with the offering of the Notes. (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 13 or 15(d) of the Exchange Act. , provide to each holder of such restricted securities and to each prospective purchaser (has designated by such holder) ~~The Company will apply~~ of such restricted securities, upon the ~~net proceeds from~~ request of such holder or prospective purchaser, any information required to be provided by Rule 144A(d)(4) under the ~~sale~~ Securities Act. This covenant is intended to be for the benefit of the ~~Notes in the manner set forth in the most recent Preliminary Prospectus~~ holders, and the ~~Prospectus. (i) During the period beginning on the date hereof and continuing~~ prospective purchasers designated by such holders, from time to ~~and including the Closing Date, neither the Company nor any Guarantor will, without the prior written consent~~ time 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 and the Guarantees (including, without limitation, with respect to the maturity, currency, interest rate and other material terms thereof). (j) The Company and the Guarantors will pay the required Commission filing fees relating to the Notes and the Guarantees 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 Regulationssuch restricted securities. (k) ~~If required by Rule 430B(h~~The Company will cooperate with the Initial Purchaser and use all reasonable efforts to (i) permit the Securities to be eligible for clearance and settlement through the facilities of DTC and such other clearance and settlement systems that the Initial Purchaser may designate and (ii) arrange to have the Securities be designated as PORTAL-eligible securities in accordance with the rules and regulations of the ~~Rules and Regulations,~~ NASD relating to the Company and the Guarantors 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 Company and the Guarantors will not file any amendment or supplement to such prospectus, which filing is not consented to by the Representatives promptly after reasonable notice thereof (such consent not to be unreasonably withheld or delayed)PORTAL Market. (l) The Company ~~and~~ will use all reasonable efforts to cause the ~~Guarantors will cooperate with~~ Underlying Securities issuable upon conversion of the ~~Representatives and with counsel~~ Securities to be duly authorized for listing by The American Stock Exchange on or prior to the ~~Underwriters in connection with~~ Closing Date and ensure that the ~~qualification~~ Underlying Securities issuable upon conversion of the ~~Notes and~~ Securities remain authorized for listing following the Guarantees for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Underwriters may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualification and to permit the continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the distribution of the Notes and the Guarantees; provided, however, that in no event will either the Company or the Guarantors be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than for actions or proceedings arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subjectClosing Date. (m) ~~Neither~~ The Company shall deposit the net proceeds of its sale of the Securities as set forth in the Offering Memorandum. (n) The Company shall not invest, or otherwise use the proceeds received by the Company ~~nor any~~ from its sale of the ~~Guarantors~~ Securities in such a manner as would require the Company to register as an "investment company" under the Investment Company Act. (o) The Company will not take, directly or indirectly, any action designed to cause or result in, or ~~which~~ that has constituted or could reasonably be expected to ~~cause or result in~~constitute, the unlawful stabilization or manipulation of the price of ~~the Notes to facilitate the sale or resale~~ any securities of the ~~Notes~~Company. (np) The Company has issued 8-7/8% Senior Notes due 2007 (the "EXISTING NOTES"). On or before the Closing Date, the Company will ~~comply~~ deliver to the Trustee a redemption notice in compliance with the terms of the indentures governing the Existing Notes (the "EXISTING INDENTURES"). The redemption price will be $165 million in principal, plus the applicable premium and accrued and unpaid interest through the redemption date. On the Closing Date, the Company will deposit with the Paying Agent for the Existing Notes a portion of the redemption price equal to $150 million in principal, plus the applicable premium and accrued and unpaid interest through the redemption date. The Company will deposit the remaining balance of the redemption price with the Paying Agent for the Existing Notes on or before one business day preceding the redemption date. If (i) the Initial Purchaser exercises its option to purchase all ~~agreements set forth~~ or any portion of the Option Securities and the Company's ability to issue the Option Securities under the Existing Indentures is subject to its ability to satisfy the Consolidated Interest Coverage Ratio (as defined in the ~~representation letter~~ Existing Indentures), and (ii) the Company's ability to satisfy the Consolidated Interest Coverage Ratio requires it to redeem an additional portion of the Existing Notes, then the Company will redeem an additional portion of the Existing Notes in an amount sufficient to permit the Company to ~~DTC relating to~~ satisfy the ~~acceptance~~ Consolidated Interest Coverage Ratio and will, immediately upon the issuance of the ~~Notes for “book-entry” transfer through~~ Option Securities, deposit the ~~facilities of DTC~~proceeds from such issuance with the Trustee (together with any additional funds needed to deposit the total redemption price).

Appears in 1 contract

Samples: Purchase Agreement (Murco Drilling Corp)

Covenants of the Company and the Guarantors. ~~The~~ Each of the Company and ~~each of~~ the ~~Guarantors,~~ Guarantors jointly and ~~severally, covenant and agree with each Underwriter that~~severally agrees: (a) ~~The Company and~~ At any time prior to the ~~Guarantors (i) will prepare the Prospectus in a form approved by the Representatives and file the Prospectus pursuant to Rule 424(b)~~ date of the Rules and Regulations within the time period prescribed by such Rule; (ii) will not file any amendment or supplement to the Registration Statement or the Prospectus or file any document under the Exchange Act before the termination completion of the ~~offering~~ resale of the Notes by the ~~Underwriters~~ Initial Purchaser, the Company shall (i) advise the Initial Purchaser promptly after obtaining knowledge (and, if ~~such document would be deemed to be incorporated by reference into the Prospectus, which filing is not consented to~~ requested by the ~~Representatives after reasonable notice thereof (~~Initial Purchaser, confirm such consent not to be unreasonably withheld or delayed); (iii) will advise the Representatives, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement, the most recent Preliminary Prospectus or the Prospectus has been filed; (iv) will prepare the Final Term Sheet, substantially advice in ~~the form of Schedule III hereto and approved by the Representatives and file the Final Term Sheet pursuant to Rule 433(d~~writing) of ~~the Rules and Regulations within the time period prescribed by such Rule;~~ (vA) ~~will advise the Representatives promptly after it receives notice thereof, in each case, of~~ the issuance by ~~the Commission or~~ any state ~~or other regulatory body~~ securities commission of any stop order ~~or any order suspending the effectiveness of the Registration Statement, suspending or preventing the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or~~ suspending the qualification or exemption from qualification of any of the Notes ~~or the Guarantees~~ for ~~offering~~ offer or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any state securities commission or other regulatory authority, or (B) the happening of any event that makes any statement of a material fact made in the Offering Circular untrue or that requires the making of any additions to or changes in the Offering Circular in order to make the statements therein, in the light of the ~~initiation or threatening of any proceedings for any such purpose or pursuant to Section 8A of the Securities Act~~circumstances under which they were made, of receipt by the Company or any Guarantor 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 Statementnot misleading, ~~the Prospectus or any Issuer Free Writing Prospectus or for additional information; and~~ (viii) ~~will~~ use its commercially reasonable ~~best~~ efforts to prevent the issuance of any stop order or order suspending the qualification or exemption from qualification of any of the Notes under any state securities or Blue Sky laws, and (iii) if, at any time, any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of any of the Notes under any such laws, use its commercially reasonable efforts to obtain the withdrawal or lifting of such order ~~or any such notice of objection and, if a stop order or other such order is issued or any such notice of objection is received, to obtain as soon as~~ at the earliest possible ~~the lifting or withdrawal thereof~~time. (b) IfTo (i) furnish the Initial Purchaser, without charge, as many copies of the Offering Circular, and any amendments or supplements thereto, as the Initial Purchaser may reasonably request, and (ii) promptly prepare, upon the Initial Purchaser's reasonable request, any amendment or supplement to the Offering Circular that the Initial Purchaser, upon advice of legal counsel, determines may be necessary in connection with Exempt Resales (and the Company hereby consents to the use of the Offering Circular, and any amendments and supplements thereto, by the Initial Purchaser in connection with Exempt Resales). (c) Not to amend or supplement the Offering Circular prior to the Closing Date, or at any time prior to the completion of the ~~distribution~~ resale by the Initial Purchaser of all the Notes purchased by the Initial Purchaser, unless the Initial Purchaser shall previously have been advised thereof and shall have provided its written consent thereto (which consent shall not be unreasonably withheld). (d) So long as the Initial Purchaser shall hold any of the Notes, (i) if any event ~~occurs or information becomes known that~~shall occur as a result of which, in the reasonable judgment of the Company or ~~any~~ the Initial Purchaser, it becomes necessary or advisable to amend or supplement the Offering Circular in order to make the statements therein, in the light of the ~~Guarantors~~ circumstances under which they were made, not misleading, or in if it is necessary to amend or supplement the ~~opinion~~ Offering Circular to comply with Applicable Law, to prepare, at the expense of the ~~Representatives~~ Company, an appropriate amendment or ~~counsel for~~ supplement to the ~~Underwriters, should be set forth~~ Offering Circular (in form and substance reasonably satisfactory to the ~~Disclosure Package or the Prospectus~~ Initial Purchaser) so that ~~the Disclosure Package or the Prospectus,~~ (A) as ~~then~~ so amended or supplemented, ~~does~~ the Offering Circular will not include ~~any~~ an untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, ~~or if it is necessary to supplement or amend~~ and (B) the ~~Disclosure Package or the Prospectus in order to~~ Offering Circular will comply with ~~any law,~~ Applicable Law and (ii) if in the reasonable judgment of the Company it becomes necessary or advisable to amend or supplement the Offering Circular so that the Offering Circular will contain all of the information specified in, and meet the ~~Guarantors will forthwith~~ requirements of, Rule 144A(d)(4) of the Act, to prepare an appropriate amendment or supplement to the Offering Circular (in form and substance reasonably satisfactory to the Initial Purchaser) so that the Offering Circular, as so amended or ~~amendment thereto~~supplemented, will contain the information specified in, and ~~will expeditiously furnish to~~ meet the ~~Representatives and counsel for the Underwriters a reasonable number of copies thereof~~requirements of, such Rule. (ce) ~~The Company~~ To cooperate with the Initial Purchaser and the ~~Guarantors will furnish to each~~ Initial Purchaser's counsel in connection with the qualification of the ~~Representatives~~ Notes under the securities or Blue Sky laws of such jurisdictions as the Initial Purchaser may reasonably request and ~~to counsel~~ continue such qualification in effect so long as reasonably required for ~~the Underwriters such number of conformed copies~~ Exempt Resales. (f) Whether or not any of the ~~Registration Statement~~Offering or the transactions contemplated under the Transactions are consummated or this Agreement is terminated, ~~as originally filed~~ to pay (i) all costs, expenses, fees and ~~each amendment thereto~~ taxes incident to and in connection with: (~~excluding exhibits)~~A) the preparation, ~~any Preliminary Prospectus,~~ printing and distribution of the ~~Final Term Sheet and any other Issuer Free Writing Prospectus, the Prospectus~~ Offering Circular and all amendments and supplements ~~to any of such documents~~ thereto (~~other than any document filed under the Exchange Act~~ including, without limitation, financial statements and ~~deemed to be incorporated by reference in the Registration Statement, any Preliminary Prospectus or the Prospectus~~exhibits), ~~in each case as soon as available~~ and in such quantities as the Representatives may from time to time reasonably request. (d) During the period in which the Prospectus relating to the Notes and the Guarantees (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is required to be delivered under the Securities Act, the Company and the Guarantors will comply with all requirements imposed upon it by the Securities Act and by the Rules and Regulations, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Notes as contemplated by the provisions of this Agreement and by the Prospectus. If during such period any event occurs as a result of which the Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or 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 the Securities Act, the Company and the Guarantors will promptly notify the Representatives and will, subject to Section 4(a) hereof, amend the Registration Statement, amend or supplement the Disclosure Package or the Prospectus, as the case may be, or file any document (in each case, at the expense of the Company and the Guarantors) so as to correct such statement or omission or to effect such compliance, and will furnish without charge to each Underwriter as many written and electronic copies of any such amendment or supplement as the Representatives may from time to time reasonably request. (e) As soon as practicable, the Company will make generally available to its security holders and the Underwriters an earnings statement satisfying the requirements of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (f) The Company and the Guarantors jointly and severally agree, whether or not this Agreement becomes effective or 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 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~~ prepared and delivered in connection ~~with~~ herewith, (B) the ~~offering~~negotiation, ~~purchase~~printing, ~~sale~~ processing and distribution (including, without limitation, word processing and duplication costs) and delivery of, each of the Transaction Documents, (C) the preparation, issuance and delivery of the Notes; , (~~iii) the services of the Company’s independent registered public accounting firm; (iv) the services of the Company’s and the Guarantors’ counsel; (v~~D) the qualification of the Notes for offer and ~~the Guarantees~~ sale under the securities or Blue Sky laws of the several ~~jurisdictions~~ states (including, without limitation, the fees and disbursements of the Initial Purchaser's counsel relating to such registration or qualification) and (E) furnishing such copies of the Offering Circular, and all amendments and supplements thereto, as ~~provided~~ may reasonably be requested for use by the Initial Purchaser, (ii) all fees and expenses of the counsel, accountants and any other experts or advisors retained by the Company, (iii) all expenses and listing fees in ~~Section 4(l~~connection with the application for quotation of the Notes on the Private Offerings, Resales and Trading Automated Linkages ("PORTAL") ~~hereof~~ market, (iv) all fees and ~~the preparation, printing and distribution of a Blue Sky Memorandum~~ expenses (including ~~the related~~ fees and ~~reasonable~~ expenses of ~~counsel to~~ counsel) of the ~~Underwriters); (vi) any rating~~ Company in connection with approval of the Notes by DTC for "book-entry" transfer, (v) all fees charged by rating ~~agencies;~~ agencies in connection with the rating of the Notes, (~~vii~~vi) ~~the~~ all fees and expenses (including reasonable fees and expenses of ~~counsel for~~ counsel) of the ~~Underwriters~~ Trustee and all collateral agents, (vii) all costs and expenses in connection with the creation and perfection of the Security Agreement (including without limitation, filing and recording fees, search fees, taxes and costs of title policies) and (viii) all fees, disbursements and out-of-pocket expenses incurred by the Initial Purchaser in connection with its ~~review~~ services to be rendered hereunder including, without limitation, 50% of the offering’s compliance with FINRA rules and the filing fees incident to FINRA’s review, if any, and approval of the Underwriters’ participation in the offering and distribution of the Notes (it being understood that the expenses described in clause (v) and this clause (vii) of this Section 4(f) shall not exceed, in the aggregate, $10,000); (viii) the services of the Trustee and any agent of the Trustee (including the fees and disbursements of Proskauer Rose LLP, counsel to the Initial Purchaser, travel and lodging expenses, word processing charges, messenger and duplicating services, facsimile expenses and other customary expenditures. If the sale of the Notes provided for herein is not consummated because any condition to the obligations of the Initial Purchaser set forth in SECTION 7 hereof is not satisfied, because this Agreement is terminated pursuant to SECTION 9 hereof or because of any failure, refusal or inability on the part of the Company to perform all obligations and satisfy all conditions on its part to be performed or satisfied hereunder (other than in each such case solely by reason of a default by the Initial Purchaser on its obligations hereunder after all conditions hereunder have been satisfied in accordance herewith), the Company agrees to promptly reimburse the Initial Purchaser in cash upon demand for all fees, disbursements and out-of-pocket expenses (including 50% of the fees, disbursements and charges of Proskauer Rose LLP, counsel for the ~~Trustee); (ix~~Initial Purchaser) ~~any “road show” or other investor presentations relating~~ to ~~the offering of the Notes; and (x) otherwise incident to the performance~~ be paid in cash that shall have been incurred by the Company and the Guarantors of their obligations hereunder for which provision is not otherwise made in this Section 4(f). It is understood, however, that, except as provided in this Section 4(f) or Sections 7 and 9 hereof, the Underwriters will pay all of their own costs and expenses, including the fees and expenses of counsel to the Underwriters and any advertising expenses incurred Initial Purchaser in connection with the ~~offering~~ proposed purchase and sale of the Notes. (g) ~~Until completion~~ To use the proceeds of the ~~distribution~~ Offering in the manner described in the Offering Circular under the caption "USE OF PROCEEDS." (h) To do and perform all things required to be done and performed under the Transaction Documents prior to and after the Closing Date. (i) Not to, and to ensure that no affiliate (as defined in Rule 501(b) of the Act) of the Company will, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) that would be integrated with the sale of the Notes in a manner that would require the registration under the Act of the sale to the Initial Purchaser or to the Subsequent Purchasers of the Notes. (j) For so long as any of the Notes remain outstanding, during any period in which the Company ~~will timely file all reports, documents and amendments to previously filed documents required to be filed by it pursuant~~ is not subject to Section ~~12, 13(a), 13(c), 14~~ 13 or 15(d) of the Exchange Act~~. (h) The Company will apply the net proceeds from the sale~~ , to make available, upon request, to any owner of the Notes in connection with any sale thereof and any prospective Subsequent Purchasers of such Notes from such owner, the manner set forth in the most recent Preliminary Prospectus and the Prospectus. (i) During the period beginning on the date hereof and continuing to and including the Closing Date, neither the Company nor any Guarantor will, 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 and the Guarantees (including, without limitation, with respect to the maturity, currency, interest rate and other material terms thereof). (j) The Company and the Guarantors will pay the required Commission filing fees relating to the Notes and the Guarantees within the time period information required by Rule ~~456(b)(1~~144A(d)(4) of under 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~~Act. (k) If required by Rule 430B(h) of the Rules and Regulations, the Company and the Guarantors 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 Company and the Guarantors will not file any amendment or supplement to such prospectus, which filing is not consented to by the Representatives promptly after reasonable notice thereof (such consent not to be unreasonably withheld or delayed). (l) The Company and the Guarantors will cooperate with the Representatives and with counsel to the Underwriters in connection with the qualification of the Notes and the Guarantees for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Underwriters may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualification and to permit the continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the distribution of the Notes and the Guarantees; provided, however, that in no event will either the Company or the Guarantors be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than for actions or proceedings arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject. (m) Neither the Company nor any of the Guarantors will take, directly or indirectly, any action designed to cause or result in, or which could reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Notes to facilitate the sale or resale of the Notes. (n) The Company will To comply with ~~all agreements set forth in~~ the representation letter of the Company to DTC relating to the ~~acceptance~~ approval of the Notes by DTC for ~~“book~~"book entry" transfer. (l) To use its commercially reasonable efforts to effect the inclusion of the Notes in Private Offerings, Resales and Trading through Automated Linkages Market. (m) For so long as any of the Notes remain outstanding, to furnish to the Initial Purchaser copies of all reports and other communications (financial or otherwise) furnished by the Company to the Trustee or to the holders of the Notes and, as soon as available, copies of any reports or financial statements furnished to or filed by the Company with the SEC or any national securities exchange on which any class of securities of the Company may be listed. (n) To not, and to not authorize or permit any person acting on its behalf to, (i) distribute any offering material in connection with the offer and sale of the Notes other than the Offering Circular and any amendments and supplements to the Offering Circular prepared in compliance with this Agreement, or (ii) solicit any offer to buy or offer to sell the Notes by means of any form of general solicitation or general advertising (including, without limitation, as such terms are used in Regulation D under the Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Act. (o) During the one-~~entry”~~ year period after the Closing Date (or such shorter period as may be provided for in Rule 144 under the Act, as the same may be in effect from time to time), the Company shall not, and shall not permit any current or future Subsidiaries of either the Company or any other affiliates (as defined in Rule 144A under the Act) controlled by the Company to, resell any of the Notes that constitute "restricted securities" under Rule 144 that have been reacquired by the Company, any current or future Subsidiaries or any other "affiliates" (as defined in Rule 144A under the Act) controlled by the Company, except pursuant to an effective registration statement under the Act. (p) To pay all stamp, documentary and transfer ~~through~~ taxes and other duties, if any, which may be imposed by the ~~facilities~~ United States or any political subdivision thereof or taxing authority thereof or therein with respect to the issuance of ~~DTC~~the Notes or the sale thereof to the Initial Purchaser. (q) To use its best efforts to complete on or prior to the Closing Date all filings and other similar actions required in connection with the perfection of security interests as and to the extent contemplated by the Collateral Agreements. (r) The Company shall, no later than September 25, 2008, file Amendment No. 2 to its Annual Report on Form 10-K for the fiscal year ended December 30, 2007 originally filed on March 27, 2008.

Appears in 1 contract

Samples: Purchase Agreement (Perkins & Marie Callender's Inc)

Covenants of the Company and the Guarantors. ~~The Company and each of the Guarantors, jointly and severally, covenant and agree with each Underwriter that:~~ (a) The Company and the Guarantors covenant and agree as follows: (i) The Company will ~~prepare~~ cause a prospectus supplement to be filed (but only if the ~~Prospectus~~ Underwriters or their counsel has not reasonably objected thereto by notice to the Company after having been furnished a copy a reasonable time prior to filing) in ~~a form approved by~~ connection with the ~~Representatives and file the Prospectus pursuant to Rule 424(b)~~ offering of the ~~Rules~~ Series C Notes and ~~Regulations within~~ will notify the ~~time period prescribed by~~ Underwriters promptly of such ~~Rule;~~ filing. (ii) ~~will not file~~ Until the completion of the distribution of the Series C Notes, the Company shall promptly advise the Underwriters in writing (i) when any amendment to the Registration Statement shall have become effective or any supplement to the Prospectus has been filed, (ii) of any request by the Commission for any amendment of the Registration Statement or the Prospectus or ~~file~~ for any ~~document under the Exchange Act before the termination of the offering of the Notes by the Underwriters if such document would be deemed to be incorporated by reference into the Prospectus~~additional information, ~~which filing is not consented to by the Representatives after reasonable notice thereof (such consent not to be unreasonably withheld or delayed);~~ (iii) will advise the Representatives, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement, the most recent Preliminary Prospectus or the Prospectus has been filed; (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; (v) will advise the Representatives promptly after it receives notice thereof, in each case, of the issuance ~~by the Commission or any state or other regulatory body~~ of any stop ~~order or any~~ order suspending the effectiveness of the Registration ~~Statement, suspending~~ Statement or ~~preventing~~ the ~~use~~ institution or threatening of any ~~Preliminary Prospectus,~~ proceeding for that purpose and (iv) of the ~~Prospectus or~~ receipt by the Company of any ~~Issuer Free Writing Prospectus or suspending~~ notification with respect to the suspension of the qualification of the Series C Notes ~~or the Guarantees~~ for ~~offering or~~ sale in any ~~jurisdiction, of~~ jurisdiction or the initiation or threatening of any ~~proceedings~~ proceeding for ~~any~~ such ~~purpose or pursuant to Section 8A~~ purpose. For a period of 60 days after the ~~Securities Act~~Delivery Date, ~~of receipt by~~ the Company or shall not file any ~~Guarantor from the Commission of any notice of objection to the use~~ amendment of the Registration Statement or ~~any post-effective amendment thereto or of any request by~~ supplement to the ~~Commission for~~ Prospectus, in each case, relating to the ~~amending or supplementing~~ offering of the ~~Registration Statement,~~ Series C Notes unless the ~~Prospectus~~ Company has furnished the Underwriters a copy for its review prior to filing and shall not file any such proposed amendment or ~~any Issuer Free Writing Prospectus or for additional information; and (vi) will~~ supplement to which the Underwriters reasonably object. The Company shall use its ~~reasonable~~ best efforts to prevent the issuance of any stop order ~~or other such order or any such notice of objection~~ and, if ~~a stop order or other such order is issued or any such notice of objection is received~~issued, to obtain as soon as possible the ~~lifting or~~ withdrawal thereof. (biii) ~~If, at any time prior to~~ Until the completion of the distribution of the Series C Notes, ~~any event occurs or information becomes known that, in~~ the ~~judgment~~ Company shall deliver promptly to the Underwriters such number of the ~~Company or any~~ following documents as the Underwriters shall reasonably request: (i) conformed copies of the ~~Guarantors~~ Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits) and (ii) the Prospectus and any amended or in supplemented Prospectus; and, if the ~~opinion~~ delivery of a prospectus is required at any time after the filing of the ~~Representatives~~ Prospectus in connection with the offering or ~~counsel for~~ sale of the ~~Underwriters, should be set forth in the Disclosure Package or~~ Series C Notes and if at such time any events shall have occurred as a result of which the Prospectus ~~so that the Disclosure Package or the Prospectus,~~ as then amended or ~~supplemented, does not~~ supplemented would include ~~any~~ an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were ~~made~~made when such Prospectus is delivered, not misleading, or or, if for any other reason it is shall be necessary to amend or supplement ~~or amend the Disclosure Package or~~ the Prospectus in order to comply with ~~any law~~the Securities Act, to notify the ~~Company~~ Underwriters and, upon its request, to prepare and ~~the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously~~ furnish without charge to the ~~Representatives and counsel for~~ Underwriters as many copies as the Underwriters a reasonable number of copies thereof. (c) The Company and the Guarantors will furnish to each of the Representatives and to counsel for the Underwriters such number of conformed copies of the Registration Statement, as originally filed and each amendment thereto (excluding exhibits), any Preliminary Prospectus, the Final Term Sheet and any other Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements to any of such documents (other than any document filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, any Preliminary Prospectus or the Prospectus), in each case as soon as available and in such quantities as the Representatives may from time to time reasonably ~~request. (d) During the period in which the Prospectus relating to the Notes and the Guarantees (or in lieu thereof, the notice referred to in Rule 173(a)~~ request of the Rules and Regulations) is required to be delivered under the Securities Act, the Company and the Guarantors will comply with all requirements imposed upon it by the Securities Act and by the Rules and Regulations, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Notes as contemplated by the provisions of this Agreement and by the Prospectus. If during such period any event occurs as a result of which the Disclosure Package or the Prospectus as then an amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or 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 the Securities Act, the Company and the Guarantors~~ which will promptly notify the Representatives and will, subject to Section 4(a) hereof, amend the Registration Statement, amend or supplement the Disclosure Package or the Prospectus, as the case may be, or file any document (in each case, at the expense of the Company and the Guarantors) so as to correct such statement or omission or to effect such compliance~~, and will furnish without charge to each Underwriter as many written and electronic copies of any such amendment or supplement as the Representatives may from time to time reasonably request~~. (eiv) ~~As soon as practicable, the~~ The Company ~~will~~ shall make generally available to its security holders and to the Underwriters as soon as practicable, but not later than 45 days after the end of the 12-month period beginning at the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (or 90 days if such 12-month period coincides with the Company's fiscal year), an ~~earnings~~ earning statement ~~satisfying~~ (which need not be audited) of the ~~requirements~~ Company, covering such 12-month period, which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 of the ~~Rules and Regulations~~Rules. (fv) The Company shall furnish to the Underwriters and counsel for the Underwriters, upon request and without charge, copies of the Registration Statement (including all exhibits thereto and amendments thereof) and all amendments thereof and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of the Prospectus and any amendments thereof and supplements thereto as the Underwriters may reasonably request. (vi) The Company shall reasonably cooperate with the Underwriters and counsel for the Underwriters in endeavoring to qualify the Series C Notes for offer and sale in connection with the offering under the laws of such jurisdictions as the Underwriters and the Company have mutually agreed are appropriate and shall maintain such qualifications in effect so long as required for the distribution of the Series C Notes; PROVIDED, HOWEVER, that the Company shall not be required in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation as doing business in any jurisdiction. (vii) On or before completion of this offering, the Company shall make all filings required under applicable securities laws including any required registration under the Exchange Act. (viii) The Company will apply the net proceeds from the offering of the Series C Notes in the manner set forth under "Use of Proceeds" in the Prospectus. (ix) Except as stated in this Agreement and in the Prospectus, the Company and the Guarantors have not taken, nor will any of them take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Series C Notes to facilitate the sale or resale of the Series C Notes. (x) The Company and the Guarantors ~~jointly~~ agree to comply in all material respects with all the terms and ~~severally agree, whether or not this Agreement becomes effective or is terminated or~~ conditions of the ~~sale~~ Indenture and all agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for "book-entry" transfer. (xi) The Company and the Guarantors will not voluntarily claim, and will resist actively all attempts to claim, the benefit of any usury laws against holders of the Notes. (xii) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them before the Delivery Date, and to satisfy all conditions precedent to the ~~Underwriters is consummated,~~ Underwriters' obligations hereunder to purchase the Series C Notes. (b) The Company agrees to pay ~~all fees, expenses, costs and charges in connection with:~~ (ia) the ~~preparation~~costs incident to the authorization, 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 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, purchaseissuance, sale and delivery of the ~~Notes~~Series C Notes and any taxes payable in that connection; (~~iii~~b) the ~~services~~ costs incident to the preparation, printing and filing under the Securities Act of the ~~Company’s independent registered public accounting firm~~Prospectus and any amendments and exhibits thereto; (ivc) the ~~services~~ costs of distributing the ~~Company’s~~ Prospectus as originally filed and each amendment thereto and any post-effective amendments thereof (including, in each case, exhibits), the ~~Guarantors’ counsel~~Prospectus and any amendment or supplement to the Prospectus, all as provided in this Agreement; (vd) any applicable listing or other fees; (e) the ~~qualification~~ fees and expenses (not in excess, in the aggregate, of $10,000, including related fees and expenses of counsel to the Underwriter) of qualifying the Series C Notes ~~and the Guarantees~~ under the securities laws of the several jurisdictions as provided in Section ~~4(l~~5(a)(vi) ~~hereof~~ and ~~the preparation~~of preparing, printing and ~~distribution of~~ distributing a Blue Sky ~~Memorandum~~ Memorandum; (~~including~~ f) the ~~related fees~~ costs and ~~reasonable~~ expenses of ~~counsel~~ the Company relating to investor presentations on any "road show" undertaken in connection with the ~~Underwriters); (vi) any rating~~ marketing of the ~~Notes by rating agencies; (vii)~~ offering of the ~~reasonable~~ Series C Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of ~~counsel for the Underwriters~~ any consultants engaged in connection with ~~its review of~~ the ~~offering’s compliance~~ road show presentations with ~~FINRA rules and~~ the ~~filing fees incident to FINRA’s review, if any, and~~ prior approval of the ~~Underwriters’ participation in the offering~~ Company, travel and ~~distribution~~ lodging expenses of the ~~Notes~~ representatives and officers of the Company and any such consultants, and one-half of the cost of any aircraft chartered in connection with the road show; (~~it being understood that the~~ g) all fees and expenses ~~described in clause~~ (v) including fees and ~~this clause (vii~~expenses of counsel) of this Section 4(f) shall not exceed, in the aggregate, $10,000); (viii) the services of the Trustee and any agent of the Trustee (including the fees and disbursements of counsel for the Trustee); (ix) any “road show” or other investor presentations relating to the offering of the Notes; and (x) otherwise incident to the performance by the Company and the Guarantors in connection with approval of ~~their~~ the Notes by DTC for "book-entry" transfer; (h) all expenses in connection with the Exchange Offer, including the issuance of the Additional Series C Notes and (i) all other costs and expenses incident to the performance of the obligations ~~hereunder for which provision is not otherwise made in~~ of the Company under this ~~Section 4(f). It is understood, however,~~ Agreement; provided that, except as provided in this Section ~~4(f) or Sections 7~~ 5 and in Section 9 ~~hereof,~~ the Underwriters ~~will~~ shall pay ~~all of their~~ its own costs and expenses~~, including the fees and expenses of counsel to the Underwriters and any advertising expenses incurred in connection with the offering of the Notes~~. (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 in the manner set forth in the most recent Preliminary Prospectus and the Prospectus. (i) During the period beginning on the date hereof and continuing to and including the Closing Date, neither the Company nor any Guarantor will, 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 and the Guarantees (including, without limitation, with respect to the maturity, currency, interest rate and other material terms thereof). (j) The Company and the Guarantors will pay the required Commission filing fees relating to the Notes and the Guarantees 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) If required by Rule 430B(h) of the Rules and Regulations, the Company and the Guarantors 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 Company and the Guarantors will not file any amendment or supplement to such prospectus, which filing is not consented to by the Representatives promptly after reasonable notice thereof (such consent not to be unreasonably withheld or delayed). (l) The Company and the Guarantors will cooperate with the Representatives and with counsel to the Underwriters in connection with the qualification of the Notes and the Guarantees for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Underwriters may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualification and to permit the continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the distribution of the Notes and the Guarantees; provided, however, that in no event will either the Company or the Guarantors be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than for actions or proceedings arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject. (m) Neither the Company nor any of the Guarantors will take, directly or indirectly, any action designed to cause or result in, or which could reasonably be expected to cause or result in, the 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 letter of the Company to DTC relating to the acceptance of the Notes for “book-entry” transfer through the facilities of DTC.

Appears in 1 contract

Samples: Underwriting Agreement (Key Energy Services Inc)

Covenants of the Company and the Guarantors. ~~The~~ Each of the Company and the Guarantors jointly and severally agrees with each of the ~~Guarantors, jointly and severally, covenant and agree with each Underwriter~~ Initial Purchasers that: (a) ~~The Company and~~ At any time prior to the ~~Guarantors (i) will prepare the Prospectus in a form approved by the Representatives and file the Prospectus pursuant to Rule 424(b)~~ date of the Rules and Regulations within the time period prescribed by such Rule; (ii) will not file any amendment or supplement to the Registration Statement or the Prospectus or file any document under the Exchange Act before the termination completion of the ~~offering~~ resale of the Notes by the ~~Underwriters~~ Initial Purchasers, to (i) advise the Initial Purchasers as promptly as practicable after obtaining knowledge (and, if ~~such document would be deemed to be incorporated by reference into the Prospectus, which filing is not consented to~~ requested by the ~~Representatives after reasonable notice thereof (~~Initial Purchasers, confirm such consent not to be unreasonably withheld or delayed); (iii) will advise the Representatives, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement, the most recent Preliminary Prospectus or the Prospectus has been filed; (iv) will prepare the Final Term Sheet, substantially advice in ~~the form of Schedule III hereto and approved by the Representatives and file the Final Term Sheet pursuant to Rule 433(d~~writing) of ~~the Rules and Regulations within the time period prescribed by such Rule;~~ (vA) ~~will advise the Representatives promptly after it receives notice thereof, in each case, of~~ the issuance by ~~the Commission or~~ any state ~~or other regulatory body~~ securities commission of any stop order ~~or any order suspending the effectiveness of the Registration Statement, suspending or preventing the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or~~ suspending the qualification or exemption from qualification of any of the Notes ~~or the Guarantees~~ for ~~offering~~ offer or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any state securities commission or other regulatory authority, or (B) the happening of any event that makes any statement of a material fact made in the Pricing Disclosure Package or the Final Offering Memorandum untrue or that requires the making of any additions to or changes in the Pricing Disclosure Package or the Final Offering Memorandum in order to make the statements therein, in the light of the ~~initiation or threatening of any proceedings for any such purpose or pursuant to Section 8A of the Securities Act~~circumstances under which they were made, of receipt by the Company or any Guarantor 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 Statementnot misleading, ~~the Prospectus or any Issuer Free Writing Prospectus or for additional information; and~~ (viii) ~~will~~ use its reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption from qualification of any of the Notes under any state securities or Blue Sky laws, and (iii) if, at any time, any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of any of the Notes under any such laws, use its reasonable best efforts to obtain the withdrawal or lifting of such order ~~or any such notice of objection and, if a stop order or other such order is issued or any such notice of objection is received, to obtain as soon as~~ at the earliest possible ~~the lifting or withdrawal thereof~~time. (b) IfTo (i) furnish the Initial Purchasers, without charge, as many copies of the Pricing Disclosure Package and the Final Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request, and (ii) promptly prepare, upon the Initial Purchasers’ reasonable request, any amendment or supplement to the Offering Memorandum that the Initial Purchasers, upon advice of legal counsel, determines is necessary in connection with Exempt Resales (and the Company and the Guarantors hereby consent to the use of the Pricing Disclosure Package and the Final Offering Memorandum, and any amendments and supplements thereto, by the Initial Purchasers in connection with Exempt Resales). (c) Not to amend or supplement the Pricing Disclosure Package or the Final Offering Memorandum prior to the Closing Date, or at any time prior to the completion of the ~~distribution~~ resale by the Initial Purchasers of all the Notes purchased by the Initial Purchasers, unless the Initial Purchasers shall previously have been advised thereof and shall have provided its written consent thereto, which consent shall not be unreasonably withheld or delayed. (d) So long as the Initial Purchasers shall hold any of the Notes, (i) if any event ~~occurs or information becomes known that~~shall occur as a result of which, in the reasonable judgment of the Company or ~~any of~~ the ~~Guarantors~~ Initial Purchasers, it becomes necessary or in advisable to amend or supplement the ~~opinion of the Representatives or counsel for the Underwriters, should be set forth in the~~ Pricing Disclosure Package or the ~~Prospectus so that~~ Final Offering Memorandum in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Pricing Disclosure Package or the ~~Prospectus~~Final Offering Memorandum to comply with Applicable Law, to prepare, at the expense of the Company, an appropriate amendment or supplement to the Pricing Disclosure Package and the Final Offering Memorandum (in form and substance reasonably satisfactory to the Initial Purchasers) so that (A) as ~~then~~ so amended or supplemented, ~~does~~ the Pricing Disclosure Package and the Final Offering Memorandum will not include ~~any~~ an untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) the Pricing Disclosure Package and the Final Offering Memorandum will comply with Applicable Law and (ii) if in the reasonable judgment of the Company it becomes necessary or ~~if it is necessary~~ advisable to amend or supplement ~~or amend~~ the Pricing Disclosure Package or the ~~Prospectus~~ Final Offering Memorandum so that the Pricing Disclosure Package and the Final Offering Memorandum will contain all of the information specified in, and meet the requirements of, Rule 144A(d)(4) of the Securities Act, to prepare an appropriate amendment or supplement to the Pricing Disclosure Package or the Final Offering Memorandum (in ~~order~~ form and substance reasonably satisfactory to ~~comply~~ the Initial Purchasers) so that the Pricing Disclosure Package or the Final Offering Memorandum, as so amended or supplemented, will contain the information specified in, and meet the requirements of, such Rule. (e) To cooperate with ~~any law~~the Initial Purchasers and the Initial Purchasers’ counsel in connection with the qualification of the Notes under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and continue such qualification in effect so long as reasonably required for Exempt Resales; provided, that, the Company and its Subsidiaries will not be required to (i) qualify to do business in any jurisdiction that the ~~Guarantors will forthwith prepare an appropriate supplement~~ Company or ~~amendment thereto~~such Subsidiary is not now so qualified, ~~and will expeditiously furnish~~ (ii) take any action that would subject the Company or such Subsidiary to service of process in any jurisdiction in which the ~~Representatives and counsel for~~ Company or such Subsidiary is not now so subject, or (iii) subject the ~~Underwriters~~ Company or such Subsidiary to taxation in excess of a ~~reasonable number of copies thereof~~nominal dollar amount in any such jurisdiction where the Company or such Subsidiary are not now so subject. (cf) ~~The Company~~ Whether or not any of the Transactions are consummated or this Agreement is terminated, to pay (i) all costs, expenses, fees and taxes incident to and in connection with: (A) the preparation, printing and distribution of the Pricing Disclosure Package and the Guarantors will furnish to each of the Representatives and to counsel for the Underwriters such number of conformed copies of the Registration Statement, as originally filed and each amendment thereto (excluding exhibits), any Preliminary Prospectus, the Final ~~Term Sheet and any other Issuer Free Writing Prospectus, the Prospectus~~ Offering Memorandum and all amendments and supplements ~~to any of such documents~~ thereto (~~other than any document filed under the Exchange Act~~ including, without limitation, financial statements and ~~deemed to be incorporated by reference in the Registration Statement, any Preliminary Prospectus or the Prospectus~~exhibits), ~~in each case as soon as available~~ and in such quantities as the Representatives may from time to time reasonably request. (d) During the period in which the Prospectus relating to the Notes and the Guarantees (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is required to be delivered under the Securities Act, the Company and the Guarantors will comply with all requirements imposed upon it by the Securities Act and by the Rules and Regulations, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Notes as contemplated by the provisions of this Agreement and by the Prospectus. If during such period any event occurs as a result of which the Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or 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 the Securities Act, the Company and the Guarantors will promptly notify the Representatives and will, subject to Section 4(a) hereof, amend the Registration Statement, amend or supplement the Disclosure Package or the Prospectus, as the case may be, or file any document (in each case, at the expense of the Company and the Guarantors) so as to correct such statement or omission or to effect such compliance, and will furnish without charge to each Underwriter as many written and electronic copies of any such amendment or supplement as the Representatives may from time to time reasonably request. (e) As soon as practicable, the Company will make generally available to its security holders and the Underwriters an earnings statement satisfying the requirements of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (f) The Company and the Guarantors jointly and severally agree, whether or not this Agreement becomes effective or 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 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~~ prepared and delivered in connection ~~with~~ herewith, (B) the ~~offering~~negotiation, ~~purchase~~printing, ~~sale~~ processing and distribution (including, without limitation, word processing and duplication costs) and delivery of, each of the Transaction Documents, (C) the preparation, issuance and delivery of the Notes; , (~~iii) the services of the Company’s independent registered public accounting firm; (iv) the services of the Company’s and the Guarantors’ counsel; (v~~D) the qualification of the Notes for offer and ~~the Guarantees~~ sale under the securities or Blue Sky laws of the several ~~jurisdictions as provided in Section 4(l) hereof~~ states (including, without limitation, the reasonable and ~~the preparation, printing and distribution of a Blue Sky Memorandum (including the related~~ documented fees and ~~reasonable expenses~~ disbursements of one counsel to the ~~Underwriters~~Initial Purchasers relating to such registration or qualification); , (viE) furnishing such copies of the Pricing Disclosure Package and the Final Offering Memorandum, and all amendments and supplements thereto, as may reasonably be requested for use by the Initial Purchasers, and (F) the performance of the obligations of the Company and the Guarantors obligations under the Registration Rights Agreement, including but not limited to the Exchange Offer and any ~~rating~~ Shelf Registration Statement (ii) all fees and expenses of the counsel, accountants and any other experts or advisors retained by the Company, (iii) all expenses and listing fees in connection with the application for quotation of the Notes on the Private Offerings, Resales and Trading Automated Linkages market (“PORTAL”), (iv) all fees and expenses (including fees and expenses of counsel) of the Company in connection with approval of the Notes by DTC for “book-entry” transfer, (v) all fees charged by rating ~~agencies;~~ agencies in connection with the rating of the Notes, (~~vii~~vi) ~~the~~ all fees and expenses (including reasonable fees and expenses of ~~counsel for~~ counsel) of the ~~Underwriters~~ Trustee and all collateral agents, (vii) all costs and expenses in connection with the creation and perfection of the security interests under the Security Agreement (including without limitation, filing and recording fees, search fees, taxes and costs of title policies) and (viii) solely to the extent provided in that certain letter agreement, dated August 11, 2009, between the Company and Jefferies & Company, Inc., all fees, disbursements and out-of-pocket expenses incurred by the Initial Purchasers in connection with its ~~review of the offering’s compliance with FINRA rules and the filing fees incident~~ services to ~~FINRA’s review~~be rendered hereunder including, ~~if any~~without limitation, and approval of the Underwriters’ participation in the offering and distribution of the Notes (it being understood that the expenses described in clause (v) and this clause (vii) of this Section 4(f) shall not exceed, in the aggregate, $10,000); (viii) the services of the Trustee and any agent of the Trustee (including the fees and ~~disbursements~~ expenses of ~~counsel for the Trustee); (ix)~~ Proskauer Rose LLP, travel and lodging expenses, word processing charges, messenger and duplicating services, facsimile expenses, costs and expenses relating to investor presentations on any “road show” or undertaken in connection with marketing the Notes and other ~~investor presentations relating~~ customary expenditures. If the sale of the Notes provided for herein is not consummated because any condition to the ~~offering~~ to the obligations of the ~~Notes;~~ Initial Purchasers set forth in Section 7 is not satisfied, because this Agreement is terminated pursuant to Section 9 or because of any failure, refusal or inability on the part of the Company to perform all obligations and satisfy all conditions on its part to be performed or satisfied hereunder (~~x) otherwise incident~~ other than in each case solely by reason of a default by the Initial Purchasers on its obligations hereunder after all conditions hereunder have been satisfied in accordance herewith), the Company agrees, solely to the ~~performance by~~ extent provided in that certain letter agreement, dated August 11, 2009, between the Company and Jefferies & Company, Inc., to promptly reimburse the ~~Guarantors of their obligations hereunder~~ Initial Purchasers for ~~which provision is not otherwise made in this Section 4(f). It is understood~~all fees, ~~however, that, except as provided in this Section 4(f) or Sections 7~~ disbursements and ~~9 hereof, the Underwriters will pay all of their own costs and expenses,~~ out-of-pocket expenses (including the fees and expenses of ~~counsel to~~ Proskauer Rose LLP), travel and lodging expenses, word processing charges, messenger and duplicating services, facsimile expenses and other reasonable and customary expenditures) that shall have been incurred by the ~~Underwriters and any advertising expenses incurred~~ Initial Purchasers in connection with the ~~offering~~ proposed purchase and sale of the Notes. (g) ~~Until completion~~ To use the proceeds of the ~~distribution~~ Offering in the manner described in the Pricing Disclosure Package and the Final Offering Memorandum under the caption “Use of Proceeds.” (h) Not to, and to ensure that no affiliate (as defined in Rule 501(b) of the Securities Act) of the Company will, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any “security” (as defined in the Securities Act) that would be integrated with the sale of the Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or to the Subsequent Purchasers of the Notes. (i) For so long as any of the Notes remain “restricted securities” within the meaning of the Securities Act, during any period in which the Company ~~will timely file all reports, documents and amendments to previously filed documents required to be filed by it pursuant~~ is not subject to Section ~~12, 13(a), 13(c), 14~~ 13 or 15(d) of the Exchange Act~~. (h) The Company will apply the net proceeds from the sale~~ , to make available, upon request, to any owner of the Notes in connection with any sale thereof and any prospective Subsequent Purchasers of such Notes from such owner, the ~~manner set forth in~~ information required by Rule 144A(d)(4) under the most recent Preliminary Prospectus and the Prospectus. (i) During the period beginning on the date hereof and continuing to and including the Closing Date, neither the Company nor any Guarantor will, 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 and the Guarantees (including, without limitation, with respect to the maturity, currency, interest rate and other material terms thereof)Securities Act. (j) The Company and the Guarantors will pay the required Commission filing fees relating to the Notes and the Guarantees 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) If required by Rule 430B(h) of the Rules and Regulations, the Company and the Guarantors 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 Company and the Guarantors will not file any amendment or supplement to such prospectus, which filing is not consented to by the Representatives promptly after reasonable notice thereof (such consent not to be unreasonably withheld or delayed). (l) The Company and the Guarantors will cooperate with the Representatives and with counsel to the Underwriters in connection with the qualification of the Notes and the Guarantees for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Underwriters may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualification and to permit the continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the distribution of the Notes and the Guarantees; provided, however, that in no event will either the Company or the Guarantors be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than for actions or proceedings arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject. (m) Neither the Company nor any of the Guarantors will take, directly or indirectly, any action designed to cause or result in, or which could reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Notes to facilitate the sale or resale of the Notes. (n) The Company will To comply with ~~all agreements set forth in~~ the representation letter of the Company to DTC relating to the ~~acceptance~~ approval of the Notes by DTC for “~~book-~~book entry” transfer. (k) To use its commercially reasonable efforts to effect the inclusion of the Notes in PORTAL Market. (l) Except in connection with the Exchange Offer or the filing of the Shelf Registration Statement, to not, and to not authorize or permit any person acting on its behalf to, (i) distribute any offering material in connection with the offer and sale of the Notes other than the Pricing Disclosure Package and the Final Offering Memorandum and any amendments and supplements to the Final Offering Memorandum prepared in compliance with this Agreement, or (ii) solicit any offer to buy or offer to sell the Notes by means of any form of general solicitation or general advertising (including, without limitation, as such 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. (m) During the one-year period after the Closing Date (or such shorter period as may be provided for in Rule 144 under the Securities Act, as the same may be in effect from time to time), to not, and to not permit any current or future Subsidiaries of either the Company or any other affiliates (as defined in Rule 144A under the Securities Act) controlled by the Company to, resell any of the Notes which constitute “restricted securities” under Rule 144 that have been reacquired by the Company, any current or future Subsidiaries or any other “affiliates” (as defined in Rule 144A under the Securities Act) controlled by the Company, except pursuant to an effective registration statement under the Securities Act. (n) To pay all stamp, documentary and transfer ~~through~~ taxes and other duties, if any, which may be imposed by the ~~facilities~~ United States or any political subdivision thereof or taxing authority thereof or therein with respect to the issuance of ~~DTC~~the Notes or the sale thereof to the Initial Purchasers. (o) To use its commercially reasonable efforts to complete on or prior to the Closing Date all filings and other similar actions required in connection with the perfection of the security interests as and to the extent contemplated by the Collateral Documents.

Appears in 1 contract

Samples: Purchase Agreement (CPM Holdings, Inc.)

Covenants of the Company and the Guarantors. ~~The~~ Each of the Company and ~~each of~~ the ~~Guarantors,~~ Guarantors jointly and ~~severally, covenant and agree with each Underwriter that~~severally agrees: (a) ~~The Company and the Guarantors~~ To (i) ~~will prepare~~ advise the ~~Prospectus in a form approved~~ Initial Purchaser promptly after obtaining knowledge (and, if requested by the ~~Representatives and file the Prospectus pursuant to Rule 424(b~~Initial Purchaser, confirm such advice in writing) of ~~the Rules and Regulations within the time period prescribed by such Rule;~~ (iiA) will not file any amendment or supplement to the Registration Statement or the Prospectus or file any document under the Exchange Act before the termination of the offering of the Notes by the Underwriters 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 notice thereof (such consent not to be unreasonably withheld or delayed); (iii) will advise the Representatives, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement, the most recent Preliminary Prospectus or the Prospectus has been filed; (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; (v) will advise the Representatives promptly after it receives notice thereof, in each case, of the issuance by ~~the Commission or~~ any state ~~or other regulatory body~~ securities commission of any stop order ~~or any order suspending the effectiveness of the Registration Statement, suspending or preventing the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or~~ suspending the qualification or exemption from qualification of any of the Notes ~~or the Guarantees~~ for ~~offering~~ offer or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any state securities commission or other regulatory authority, or (B) the happening of any event that makes any statement of a material fact made in the Final Offering Circular untrue or that requires the making of any additions to or changes in the Final Offering Circular in order to make the statements therein, in the light of the ~~initiation or threatening of any proceedings for any such purpose or pursuant to Section 8A of the Securities Act~~circumstances under which they were made, of receipt by the Company or any Guarantor 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 Statementnot misleading, ~~the Prospectus or any Issuer Free Writing Prospectus or for additional information; and~~ (viii) ~~will~~ use its reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption from qualification of any of the Notes under any state securities or Blue Sky laws, and (iii) if, at any time, any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of any of the Notes under any such laws, use its reasonable best efforts to obtain the withdrawal or lifting of such order ~~or any such notice of objection and, if a stop order or other such order is issued or any such notice of objection is received, to obtain as soon as~~ at the earliest possible ~~the lifting or withdrawal thereof~~time. (b) IfTo (i) furnish the Initial Purchaser, without charge, with as many copies of the Final Offering Circular, and any amendments or supplements thereto, as the Initial Purchaser may reasonably request, and (ii) promptly prepare, upon the Initial Purchaser’s reasonable request, any amendment or supplement to the Offering Circular that the Initial Purchaser, upon advice of legal counsel, determines may be necessary in connection with Exempt Resales (and the Company hereby consents to the use of the Preliminary Offering Circular and the Final Offering Circular, and any amendments and supplements thereto, by the Initial Purchaser in connection with Exempt Resales). (c) Not to amend or supplement the Offering Circular prior to the Closing Date, or at any time prior to the completion of the ~~distribution~~ resale by the Initial Purchaser of all the Notes purchased by the Initial Purchaser, unless the Initial Purchaser shall previously have been advised thereof and shall have provided its written consent thereto. (d) So long as the Initial Purchaser shall hold any of the Notes, (i) if any event ~~occurs or information becomes known that~~shall occur as a result of which, in the reasonable judgment of the Company or ~~any~~ the Initial Purchaser, it becomes necessary or advisable to amend or supplement the Final Offering Circular in order to make the statements therein, in the light of the ~~Guarantors~~ circumstances under which they were made, not misleading, or in if it is necessary to amend or supplement the ~~opinion~~ Final Offering Circular to comply with Applicable Law, to prepare, at the expense of the ~~Representatives~~ Company, an appropriate amendment or ~~counsel for~~ supplement to the ~~Underwriters, should be set forth~~ Final Offering Circular (in form and substance reasonably satisfactory to the ~~Disclosure Package or the Prospectus~~ Initial Purchaser) so that ~~the Disclosure Package or the Prospectus,~~ (A) as ~~then~~ so amended or supplemented, ~~does~~ the Final Offering Circular will not include ~~any~~ an untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, ~~or if it is necessary to supplement or amend~~ and (B) the ~~Disclosure Package or the Prospectus in order to~~ Final Offering Circular will comply with ~~any law,~~ Applicable Law and (ii) if in the reasonable judgment of the Company it becomes necessary or advisable to amend or supplement the Final Offering Circular so that the Final Offering Circular will contain all of the information specified in, and meet the ~~Guarantors will forthwith~~ requirements of, Rule 144A(d)(4) of the Act, to prepare an appropriate amendment or supplement to the Final Offering Circular (in form and substance reasonably satisfactory to the Initial Purchaser) so that the Final Offering Circular, as so amended or ~~amendment thereto~~supplemented, will contain the information specified in, and ~~will expeditiously furnish to~~ meet the ~~Representatives and counsel for the Underwriters a reasonable number of copies thereof~~requirements of, such Rule. (ce) ~~The Company~~ To cooperate with the Initial Purchaser and the ~~Guarantors will furnish to each~~ Initial Purchaser’s counsel in connection with the qualification of the ~~Representatives~~ Notes under the securities or Blue Sky laws of such jurisdictions as the Initial Purchaser may request and ~~to counsel~~ continue such qualification in effect so long as reasonably required for ~~the Underwriters such number of conformed copies~~ Exempt Resales. (f) Whether or not any of the ~~Registration Statement~~Offering or the transactions contemplated under the Documents are consummated or this Agreement is terminated, ~~as originally filed~~ to pay (i) all costs, expenses, fees and ~~each amendment thereto~~ taxes incident to and in connection with: (~~excluding exhibits)~~A) the preparation, ~~any~~ printing and distribution of the Preliminary ~~Prospectus,~~ Offering Circular and the Final ~~Term Sheet and any other Issuer Free Writing Prospectus, the Prospectus~~ Offering Circular and all amendments and supplements ~~to any of such documents~~ thereto (~~other than any document filed under the Exchange Act~~ including, without limitation, financial statements and ~~deemed to be incorporated by reference in the Registration Statement, any Preliminary Prospectus or the Prospectus~~exhibits), ~~in each case as soon as available~~ and in such quantities as the Representatives may from time to time reasonably request. (d) During the period in which the Prospectus relating to the Notes and the Guarantees (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is required to be delivered under the Securities Act, the Company and the Guarantors will comply with all requirements imposed upon it by the Securities Act and by the Rules and Regulations, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Notes as contemplated by the provisions of this Agreement and by the Prospectus. If during such period any event occurs as a result of which the Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or 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 the Securities Act, the Company and the Guarantors will promptly notify the Representatives and will, subject to Section 4(a) hereof, amend the Registration Statement, amend or supplement the Disclosure Package or the Prospectus, as the case may be, or file any document (in each case, at the expense of the Company and the Guarantors) so as to correct such statement or omission or to effect such compliance, and will furnish without charge to each Underwriter as many written and electronic copies of any such amendment or supplement as the Representatives may from time to time reasonably request. (e) As soon as practicable, the Company will make generally available to its security holders and the Underwriters an earnings statement satisfying the requirements of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (f) The Company and the Guarantors jointly and severally agree, whether or not this Agreement becomes effective or 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 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~~ prepared and delivered in connection ~~with~~ herewith, (B) the ~~offering~~negotiation, ~~purchase~~printing, ~~sale~~ processing and distribution (including, without limitation, word processing and duplication costs) and delivery of, each of the Documents, (C) the preparation, issuance and delivery of the Notes; , (~~iii) the services of the Company’s independent registered public accounting firm; (iv) the services of the Company’s and the Guarantors’ counsel; (v~~D) the qualification of the Notes for offer and ~~the Guarantees~~ sale under the securities or Blue Sky laws of the several ~~jurisdictions as provided in Section 4(l~~states (including, without limitation, the fees and disbursements of the Initial Purchaser’s counsel relating to such registration or qualification), (E) ~~hereof~~ furnishing such copies of the Preliminary Offering Circular and the ~~preparation~~Final Offering Circular, ~~printing~~ and ~~distribution~~ all amendments and supplements thereto, as may reasonably be requested for use by the Initial Purchaser and (F) the performance of ~~a Blue Sky Memorandum~~ the obligations of the Company and the Guarantors under the Registration Rights Agreement, including but not limited to the Exchange Offer, the Exchange Offer Registration Statement and any Shelf Registration Statement, (ii) all fees and expenses of the counsel, accountants and any other experts or advisors retained by the Company, (iii) all expenses and listing fees in connection with the application for quotation of the Notes on the Private Offerings, Resales and Trading Automated Linkages (“PORTAL”) market, (iv) all fees and expenses (including ~~the related~~ fees and ~~reasonable~~ expenses of ~~counsel to~~ counsel) of the ~~Underwriters); (vi) any rating~~ Company in connection with approval of the Notes by DTC for “book-entry” transfer, (v) all fees charged by rating ~~agencies;~~ agencies in connection with the rating of the Notes, (~~vii~~vi) ~~the~~ all fees and expenses (including reasonable fees and expenses of ~~counsel for~~ counsel) of the ~~Underwriters~~ Trustee and all collateral agents, (vii) all costs and expenses in connection with the perfection of the Security Agreement (including without limitation, filing and recording fees, search fees, taxes and costs of title policies) and (viii) up to $250,000 of the fees, disbursements and out-of-pocket expenses incurred by the Initial Purchaser in connection with its ~~review of~~ services to be rendered hereunder including, without limitation, the offering’s compliance with FINRA rules and the filing fees incident to FINRA’s review, if any, and approval of the Underwriters’ participation in the offering and distribution of the Notes (it being understood that the expenses described in clause (v) and this clause (vii) of this Section 4(f) shall not exceed, in the aggregate, $10,000); (viii) the services of the Trustee and any agent of the Trustee (including the reasonable fees and disbursements of Proskauer Rose LLP, counsel to the Initial Purchaser, travel and lodging expenses, word processing charges, messenger and duplicating services, facsimile expenses and other customary expenditures. If the sale of the Notes provided for herein is not consummated because any condition to the obligations of the Initial Purchaser set forth in Section 7 hereof is not satisfied, because this Agreement is terminated pursuant to Section 9 hereof or because of any failure, refusal or inability on the part of the Company to perform all obligations and satisfy all conditions on its part to be performed or satisfied hereunder (other than in each such case solely by reason of a default by the Initial Purchaser on its obligations hereunder after all conditions hereunder have been satisfied in accordance herewith), the Company agrees to promptly reimburse the Initial Purchaser in cash upon demand for up to $250,000 of the fees, disbursements and out-of-pocket expenses (including reasonable fees and disbursements of Proskauer Rose LLP, counsel for the ~~Trustee); (ix~~Initial Purchaser) ~~any “road show” or other investor presentations relating to the offering of the Notes; and (x) otherwise incident to the performance~~ that shall have been incurred by the Company and the Guarantors of their obligations hereunder for which provision is not otherwise made in this Section 4(f). It is understood, however, that, except as provided in this Section 4(f) or Sections 7 and 9 hereof, the Underwriters will pay all of their own costs and expenses, including the fees and expenses of counsel to the Underwriters and any advertising expenses incurred Initial Purchaser in connection with the ~~offering~~ proposed purchase and sale of the Notes. (g) ~~Until completion~~ To use the proceeds of the ~~distribution~~ Offering in the manner described in the Final Offering Circular under the caption “Use of Proceeds.” (h) To do and perform all things required to be done and performed under the Documents prior to and after the Closing Date. (i) Not to, and to ensure that no affiliate (as defined in Rule 501(b) of the Act) of the Company will, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any “security” (as defined in the Act) that would be integrated with the sale of the Notes in a manner that would require the registration under the Act of the sale to the Initial Purchaser or to the Subsequent Purchasers of the Notes. (j) For so long as any of the Notes remain outstanding, during any period in which the Company ~~will timely file all reports, documents and amendments to previously filed documents required to be filed by it pursuant~~ is not subject to Section ~~12, 13(a), 13(c), 14~~ 13 or 15(d) of the Exchange Act~~. (h) The Company will apply the net proceeds from the sale~~ , to make available, upon request, to any owner of the Notes in connection with any sale thereof and any prospective Subsequent Purchasers of such Notes from such owner, the manner set forth in the most recent Preliminary Prospectus and the Prospectus. (i) During the period beginning on the date hereof and continuing to and including the Closing Date, neither the Company nor any Guarantor will, 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 and the Guarantees (including, without limitation, with respect to the maturity, currency, interest rate and other material terms thereof). (j) The Company and the Guarantors will pay the required Commission filing fees relating to the Notes and the Guarantees within the time period information required by Rule ~~456(b)(1~~144A(d)(4) of under 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~~Act. (k) If required by Rule 430B(h) of the Rules and Regulations, the Company and the Guarantors 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 Company and the Guarantors will not file any amendment or supplement to such prospectus, which filing is not consented to by the Representatives promptly after reasonable notice thereof (such consent not to be unreasonably withheld or delayed). (l) The Company and the Guarantors will cooperate with the Representatives and with counsel to the Underwriters in connection with the qualification of the Notes and the Guarantees for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Underwriters may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualification and to permit the continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the distribution of the Notes and the Guarantees; provided, however, that in no event will either the Company or the Guarantors be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than for actions or proceedings arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject. (m) Neither the Company nor any of the Guarantors will take, directly or indirectly, any action designed to cause or result in, or which could reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Notes to facilitate the sale or resale of the Notes. (n) The Company will To comply with ~~all agreements set forth in~~ the representation letter of the Company to DTC relating to the ~~acceptance~~ approval of the Notes by DTC for “~~book-~~book entry” transfer. (l) To use its best efforts to effect the inclusion of the Notes in Private Offerings, Resales and Trading through Automated Linkages Market. (m) For so long as any of the Notes remain outstanding, the Company will furnish to the Initial Purchaser copies of all reports and other communications (financial or otherwise) furnished by the Company to the Trustee or to the holders of the Notes and, as soon as available, copies of any reports or financial statements furnished to or filed by the Company with the SEC or any national securities exchange on which any class of securities of the Company may be listed. (n) Except in connection with the Exchange Offer or the filing of the Shelf Registration Statement, not to, and not to authorize or permit any person acting on its behalf to, (i) distribute any offering material in connection with the offer and sale of the Notes other than the Preliminary Offering Circular and the Final Offering Circular and any amendments and supplements to the Final Offering Circular prepared in compliance with this Agreement, or (ii) solicit any offer to buy or offer to sell the Notes by means of any form of general solicitation or general advertising (including, without limitation, as such terms are used in Regulation D under the Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Act. (o) During the two year period after the Closing Date (or such shorter period as may be provided for in Rule 144(k) under the Act, as the same may be in effect from time to time), to not, and to not permit any current or future Subsidiaries of either the Company or any other affiliates (as defined in Rule 144A under the Act) controlled by the Company to, resell any of the Notes which constitute “restricted securities” under Rule 144 that have been reacquired by the Company, any current or future Subsidiaries or any other “affiliates” (as defined in Rule 144A under the Act) controlled by the Company, except pursuant to an effective registration statement under the Act. (p) The Company shall pay all stamp, documentary and transfer ~~through~~ taxes and other duties, if any, which may be imposed by the ~~facilities~~ United States or any political subdivision thereof or taxing authority thereof or therein with respect to the issuance of ~~DTC~~the Notes or the sale thereof to the Initial Purchaser. (q) To use their best efforts to complete on or prior to the Closing Date all filings and other similar actions required in connection with the perfection of security interests as and to the extent contemplated by the Collateral Agreements. (r) To cause each of the Subsidiaries to execute counterparts of this Agreement in the form attached as Exhibit B hereto.

Appears in 1 contract

Samples: Purchase Agreement (Boston Gear LLC)

Covenants of the Company and the Guarantors. ~~The~~ Each of the Company and the Guarantors jointly and severally agrees with each of the ~~Guarantors, jointly and severally, covenant and agree with each Underwriter~~ Initial Purchasers that: (a) ~~The Company and~~ At any time prior to the ~~Guarantors (i) will prepare the Prospectus in a form approved by the Representatives and file the Prospectus pursuant to Rule 424(b)~~ date of the Rules and Regulations within the time period prescribed by such Rule; (ii) will not file any amendment or supplement to the Registration Statement or the Prospectus or file any document under the Exchange Act before the termination completion of the ~~offering~~ resale of the Notes by the ~~Underwriters~~ Initial Purchasers, to (i) advise the Initial Purchasers as promptly as practicable after obtaining knowledge (and, if ~~such document would be deemed to be incorporated by reference into the Prospectus, which filing is not consented to~~ requested by the ~~Representatives after reasonable notice thereof (~~Initial Purchasers, confirm such consent not to be unreasonably withheld or delayed); (iii) will advise the Representatives, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement, the most recent Preliminary Prospectus or the Prospectus has been filed; (iv) will prepare the Final Term Sheet, substantially advice in ~~the form of Schedule III hereto and approved by the Representatives and file the Final Term Sheet pursuant to Rule 433(d~~writing) of ~~the Rules and Regulations within the time period prescribed by such Rule;~~ (vA) ~~will advise the Representatives promptly after it receives notice thereof, in each case, of~~ the issuance by ~~the Commission or~~ any state ~~or other regulatory body~~ securities commission of any stop order ~~or any order suspending the effectiveness of the Registration Statement, suspending or preventing the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or~~ suspending the qualification or exemption from qualification of any of the Notes ~~or the Guarantees~~ for ~~offering~~ offer or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any state securities commission or other regulatory authority, or (B) the happening of any event that makes any statement of a material fact made in the Pricing Disclosure Package or the Final Offering Memorandum untrue or that requires the making of any additions to or changes in the Pricing Disclosure Package or the Final Offering Memorandum in order to make the statements therein, in the light of the ~~initiation or threatening of any proceedings for any such purpose or pursuant to Section 8A of the Securities Act~~circumstances under which they were made, of receipt by the Company or any Guarantor 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 Statementnot misleading, ~~the Prospectus or any Issuer Free Writing Prospectus or for additional information; and~~ (viii) ~~will~~ use its reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption from qualification of any of the Notes under any state securities or Blue Sky laws, and (iii) if, at any time, any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of any of the Notes under any such laws, use its reasonable best efforts to obtain the withdrawal or lifting of such order ~~or any such notice of objection and, if a stop order or other such order is issued or any such notice of objection is received, to obtain as soon as~~ at the earliest possible ~~the lifting or withdrawal thereof~~time. (b) IfTo (i) furnish the Initial Purchasers, without charge, as many copies of the Pricing Disclosure Package and the Final Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request, and (ii) promptly prepare, upon the Initial Purchasers’ reasonable request, any amendment or supplement to the Offering Memorandum that the Initial Purchasers, upon advice of legal counsel, determines is necessary in connection with Exempt Resales (and the Company and the Guarantors hereby consent to the use of the Pricing Disclosure Package and the Final Offering Memorandum, and any amendments and supplements thereto, by the Initial Purchasers in connection with Exempt Resales). (c) Not to amend or supplement the Pricing Disclosure Package or the Final Offering Memorandum prior to the Closing Date, or at any time prior to the completion of the ~~distribution~~ resale by the Initial Purchasers of all the Notes purchased by the Initial Purchasers, unless the Initial Purchasers shall previously have been advised thereof and shall have provided its written consent thereto, which consent shall not be unreasonably withheld or delayed. (d) So long as the Initial Purchasers shall hold any of the Notes, (i) if any event ~~occurs or information becomes known that~~shall occur as a result of which, in the reasonable judgment of the Company or ~~any of~~ the ~~Guarantors~~ Initial Purchasers, it becomes necessary or in advisable to amend or supplement the ~~opinion of the Representatives or counsel for the Underwriters, should be set forth in the~~ Pricing Disclosure Package or the ~~Prospectus so that~~ Final Offering Memorandum in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Pricing Disclosure Package or the ~~Prospectus~~Final Offering Memorandum to comply with Applicable Law, to prepare, at the expense of the Company, an appropriate amendment or supplement to the Pricing Disclosure Package and the Final Offering Memorandum (in form and substance reasonably satisfactory to the Initial Purchasers) so that (A) as ~~then~~ so amended or supplemented, ~~does~~ the Pricing Disclosure Package and the Final Offering Memorandum will not include ~~any~~ an untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) the Pricing Disclosure Package and the Final Offering Memorandum will comply with Applicable Law and (ii) if in the reasonable judgment of the Company it becomes necessary or ~~if it is necessary~~ advisable to amend or supplement ~~or amend~~ the Pricing Disclosure Package or the ~~Prospectus~~ Final Offering Memorandum so that the Pricing Disclosure Package and the Final Offering Memorandum will contain all of the information specified in, and meet the requirements of, Rule 144A(d)(4) of the Securities Act, to prepare an appropriate amendment or supplement to the Pricing Disclosure Package or the Final Offering Memorandum (in ~~order~~ form and substance reasonably satisfactory to ~~comply~~ the Initial Purchasers) so that the Pricing Disclosure Package or the Final Offering Memorandum, as so amended or supplemented, will contain the information specified in, and meet the requirements of, such Rule. (e) To cooperate with ~~any law~~the Initial Purchasers and the Initial Purchasers’ counsel in connection with the qualification of the Notes under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and continue such qualification in effect so long as reasonably required for Exempt Resales; provided, that, the Company and its Subsidiaries will not be required to (i) qualify to do business in any jurisdiction that the ~~Guarantors will forthwith prepare an appropriate supplement~~ Company or ~~amendment thereto~~such Subsidiary is not now so qualified, ~~and will expeditiously furnish~~ (ii) take any action that would subject the Company or such Subsidiary to service of process in any jurisdiction in which the ~~Representatives and counsel for~~ Company or such Subsidiary is not now so subject, or (iii) subject the ~~Underwriters~~ Company or such Subsidiary to taxation in excess of a ~~reasonable number of copies thereof~~nominal dollar amount in any such jurisdiction where the Company or such Subsidiary are not now so subject. (cf) ~~The Company~~ Whether or not any of the Transactions are consummated or this Agreement is terminated, to pay (i) all costs, expenses, fees and taxes incident to and in connection with: (A) the preparation, printing and distribution of the Pricing Disclosure Package and the Guarantors will furnish to each of the Representatives and to counsel for the Underwriters such number of conformed copies of the Registration Statement, as originally filed and each amendment thereto (excluding exhibits), any Preliminary Prospectus, the Final ~~Term Sheet and any other Issuer Free Writing Prospectus, the Prospectus~~ Offering Memorandum and all amendments and supplements ~~to any of such documents~~ thereto (~~other than any document filed under the Exchange Act~~ including, without limitation, financial statements and ~~deemed to be incorporated by reference in the Registration Statement, any Preliminary Prospectus or the Prospectus~~exhibits), ~~in each case as soon as available~~ and in such quantities as the Representatives may from time to time reasonably request. (d) During the period in which the Prospectus relating to the Notes and the Guarantees (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is required to be delivered under the Securities Act, the Company and the Guarantors will comply with all requirements imposed upon it by the Securities Act and by the Rules and Regulations, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Notes as contemplated by the provisions of this Agreement and by the Prospectus. If during such period any event occurs as a result of which the Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or 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 the Securities Act, the Company and the Guarantors will promptly notify the Representatives and will, subject to Section 4(a) hereof, amend the Registration Statement, amend or supplement the Disclosure Package or the Prospectus, as the case may be, or file any document (in each case, at the expense of the Company and the Guarantors) so as to correct such statement or omission or to effect such compliance, and will furnish without charge to each Underwriter as many written and electronic copies of any such amendment or supplement as the Representatives may from time to time reasonably request. (e) As soon as practicable, the Company will make generally available to its security holders and the Underwriters an earnings statement satisfying the requirements of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (f) The Company and the Guarantors jointly and severally agree, whether or not this Agreement becomes effective or 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 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~~ prepared and delivered in connection ~~with~~ herewith, (B) the ~~offering~~negotiation, ~~purchase~~printing, ~~sale~~ processing and distribution (including, without limitation, word processing and duplication costs) and delivery of, each of the Transaction Documents, (C) the preparation, issuance and delivery of the Notes; , (~~iii) the services of the Company’s independent registered public accounting firm; (iv) the services of the Company’s and the Guarantors’ counsel; (v~~D) the qualification of the Notes for offer and ~~the Guarantees~~ sale under the securities or Blue Sky laws of the several ~~jurisdictions as provided in Section 4(l) hereof~~ states (including, without limitation, the reasonable and ~~the preparation, printing and distribution of a Blue Sky Memorandum (including the related~~ documented fees and ~~reasonable expenses~~ disbursements of one counsel to the ~~Underwriters~~Initial Purchasers relating to such registration or qualification); , (viE) furnishing such copies of the Pricing Disclosure Package and the Final Offering Memorandum, and all amendments and supplements thereto, as may reasonably be requested for use by the Initial Purchasers, and (F) the performance of the obligations of the Company and the Guarantors obligations under the Registration Rights Agreement, including but not limited to the Exchange Offer and any ~~rating~~ Shelf Registration Statement (ii) all fees and expenses of the counsel, accountants and any other experts or advisors retained by the Company, (iii) all expenses and listing fees in connection with the application for quotation of the Notes on the Private Offerings, Resales and Trading Automated Linkages market (“PORTAL”), (iv) all fees and expenses (including fees and expenses of counsel) of the Company in connection with approval of the Notes by DTC for “book-entry” transfer, (v) all fees charged by rating ~~agencies;~~ agencies in connection with the rating of the Notes, (~~vii~~vi) ~~the~~ all fees and expenses (including reasonable fees and expenses of ~~counsel for~~ counsel) of the ~~Underwriters~~ Trustee and all collateral agents, (vii) all costs and expenses in connection with the creation and perfection of the security interests under the Security Agreement (including without limitation, filing and recording fees, search fees, taxes and costs of title policies) and (viii) solely to the extent provided in that certain letter agreement, dated August 11, 2009, between the Company and Xxxxxxxxx & Company, Inc., all fees, disbursements and out-of-pocket expenses incurred by the Initial Purchasers in connection with its ~~review of the offering’s compliance with FINRA rules and the filing fees incident~~ services to ~~FINRA’s review~~be rendered hereunder including, ~~if any~~without limitation, and approval of the Underwriters’ participation in the offering and distribution of the Notes (it being understood that the expenses described in clause (v) and this clause (vii) of this Section 4(f) shall not exceed, in the aggregate, $10,000); (viii) the services of the Trustee and any agent of the Trustee (including the fees and ~~disbursements~~ expenses of ~~counsel for the Trustee); (ix)~~ Proskauer Rose LLP, travel and lodging expenses, word processing charges, messenger and duplicating services, facsimile expenses, costs and expenses relating to investor presentations on any “road show” or undertaken in connection with marketing the Notes and other ~~investor presentations relating~~ customary expenditures. If the sale of the Notes provided for herein is not consummated because any condition to the ~~offering~~ to the obligations of the ~~Notes;~~ Initial Purchasers set forth in Section 7 is not satisfied, because this Agreement is terminated pursuant to Section 9 or because of any failure, refusal or inability on the part of the Company to perform all obligations and satisfy all conditions on its part to be performed or satisfied hereunder (~~x) otherwise incident~~ other than in each case solely by reason of a default by the Initial Purchasers on its obligations hereunder after all conditions hereunder have been satisfied in accordance herewith), the Company agrees, solely to the ~~performance by~~ extent provided in that certain letter agreement, dated August 11, 2009, between the Company and Jefferies & Company, Inc., to promptly reimburse the ~~Guarantors of their obligations hereunder~~ Initial Purchasers for ~~which provision is not otherwise made in this Section 4(f). It is understood~~all fees, ~~however, that, except as provided in this Section 4(f) or Sections 7~~ disbursements and ~~9 hereof, the Underwriters will pay all of their own costs and expenses,~~ out-of-pocket expenses (including the fees and expenses of ~~counsel to~~ Proskauer Rose LLP), travel and lodging expenses, word processing charges, messenger and duplicating services, facsimile expenses and other reasonable and customary expenditures) that shall have been incurred by the ~~Underwriters and any advertising expenses incurred~~ Initial Purchasers in connection with the ~~offering~~ proposed purchase and sale of the Notes. (g) ~~Until completion~~ To use the proceeds of the ~~distribution~~ Offering in the manner described in the Pricing Disclosure Package and the Final Offering Memorandum under the caption “Use of Proceeds.” (h) Not to, and to ensure that no affiliate (as defined in Rule 501(b) of the Securities Act) of the Company will, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any “security” (as defined in the Securities Act) that would be integrated with the sale of the Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or to the Subsequent Purchasers of the Notes. (i) For so long as any of the Notes remain “restricted securities” within the meaning of the Securities Act, during any period in which the Company ~~will timely file all reports, documents and amendments to previously filed documents required to be filed by it pursuant~~ is not subject to Section ~~12, 13(a), 13(c), 14~~ 13 or 15(d) of the Exchange Act~~. (h) The Company will apply the net proceeds from the sale~~ , to make available, upon request, to any owner of the Notes in connection with any sale thereof and any prospective Subsequent Purchasers of such Notes from such owner, the ~~manner set forth in~~ information required by Rule 144A(d)(4) under the most recent Preliminary Prospectus and the Prospectus. (i) During the period beginning on the date hereof and continuing to and including the Closing Date, neither the Company nor any Guarantor will, 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 and the Guarantees (including, without limitation, with respect to the maturity, currency, interest rate and other material terms thereof)Securities Act. (j) The Company and the Guarantors will pay the required Commission filing fees relating to the Notes and the Guarantees 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) If required by Rule 430B(h) of the Rules and Regulations, the Company and the Guarantors 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 Company and the Guarantors will not file any amendment or supplement to such prospectus, which filing is not consented to by the Representatives promptly after reasonable notice thereof (such consent not to be unreasonably withheld or delayed). (l) The Company and the Guarantors will cooperate with the Representatives and with counsel to the Underwriters in connection with the qualification of the Notes and the Guarantees for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Underwriters may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualification and to permit the continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the distribution of the Notes and the Guarantees; provided, however, that in no event will either the Company or the Guarantors be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than for actions or proceedings arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject. (m) Neither the Company nor any of the Guarantors will take, directly or indirectly, any action designed to cause or result in, or which could reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Notes to facilitate the sale or resale of the Notes. (n) The Company will To comply with ~~all agreements set forth in~~ the representation letter of the Company to DTC relating to the ~~acceptance~~ approval of the Notes by DTC for “~~book-~~book entry” transfer. (k) To use its commercially reasonable efforts to effect the inclusion of the Notes in PORTAL Market. (l) Except in connection with the Exchange Offer or the filing of the Shelf Registration Statement, to not, and to not authorize or permit any person acting on its behalf to, (i) distribute any offering material in connection with the offer and sale of the Notes other than the Pricing Disclosure Package and the Final Offering Memorandum and any amendments and supplements to the Final Offering Memorandum prepared in compliance with this Agreement, or (ii) solicit any offer to buy or offer to sell the Notes by means of any form of general solicitation or general advertising (including, without limitation, as such 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. (m) During the one-year period after the Closing Date (or such shorter period as may be provided for in Rule 144 under the Securities Act, as the same may be in effect from time to time), to not, and to not permit any current or future Subsidiaries of either the Company or any other affiliates (as defined in Rule 144A under the Securities Act) controlled by the Company to, resell any of the Notes which constitute “restricted securities” under Rule 144 that have been reacquired by the Company, any current or future Subsidiaries or any other “affiliates” (as defined in Rule 144A under the Securities Act) controlled by the Company, except pursuant to an effective registration statement under the Securities Act. (n) To pay all stamp, documentary and transfer ~~through~~ taxes and other duties, if any, which may be imposed by the ~~facilities~~ United States or any political subdivision thereof or taxing authority thereof or therein with respect to the issuance of ~~DTC~~the Notes or the sale thereof to the Initial Purchasers. (o) To use its commercially reasonable efforts to complete on or prior to the Closing Date all filings and other similar actions required in connection with the perfection of the security interests as and to the extent contemplated by the Collateral Documents.

Appears in 1 contract

Samples: Purchase Agreement (CPM Holdings, Inc.)

Covenants of the Company and the Guarantors. ~~The Company and~~ In further consideration of the agreements of the Underwriters contained in this Agreement, each of the ~~Guarantors, jointly~~ Company and ~~severally, covenant and agree~~ the Guarantors covenants with each Underwriter ~~that~~as follows: (a) The Company and the Guarantors will (i) ~~will~~ prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus in a form approved by the Representatives ~~and file~~ containing information previously omitted at the ~~Prospectus pursuant to Rule 424(b)~~ time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C under the Act and ~~Regulations within the time period prescribed by such Rule;~~ (ii) ~~will not~~ file on a timely basis all reports and any ~~amendment~~ definitive proxy or ~~supplement~~ information statements required to be filed by the Company with the Commission subsequent to the ~~Registration Statement or~~ date of the Prospectus ~~or file any document under the Exchange Act before~~ and prior to the termination of the offering of the ~~Notes~~ Securities by the ~~Underwriters if such document~~ Underwriters. (b) The Company and the Guarantors will (i) 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 under the Act) required to be filed by the Company or any Guarantor with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to ~~be incorporated by reference into~~ have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule III hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, ~~which filing is not consented to by the Representatives after reasonable notice thereof (such consent not to be unreasonably withheld or delayed);~~ (iii) ~~will advise~~ comply with the ~~Representatives, promptly after it receives notice thereof,~~ requirements of the ~~time when~~ Rules and Regulations, including Rules 164 and 433 under the Act, applicable to any ~~amendment or supplement~~ Issuer Free Writing Prospectus, including the requirements relating to timely filing with the ~~Registration Statement~~Commission, ~~the most recent Preliminary Prospectus or the Prospectus has been filed;~~ legending and record keeping and (iv) ~~will prepare~~ not take any action that would result in an Underwriter, the ~~Final Term Sheet, substantially in~~ Company or any Guarantor being required to file with the ~~form of Schedule III hereto and approved by the Representatives and file the Final Term Sheet~~ Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. (c) The Company will prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms of the ~~Rules~~ Securities, in form and ~~Regulations within~~ substance satisfactory to the Representatives, and shall file such Final Term Sheet as an Issuer Free Writing Prospectus pursuant to Rule 433 under the Act prior to the close of business two business days after the date hereof; provided that the Company shall provide the Representatives with copies of any such Final Term Sheet a reasonable amount of time ~~period prescribed by~~ prior to such ~~Rule;~~ proposed filing and will not use or file any such document to which the Representatives or counsel to the Underwriters shall reasonably object. (vd) The Company will advise the Representatives promptly ~~after it receives notice thereof~~(A) when any post-effective amendment to the Registration Statement shall have become effective, ~~in each case~~(B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, and (D) of the issuance by the Commission ~~or any state or other regulatory body~~ of any stop ~~order or any~~ order suspending the effectiveness of the Registration ~~Statement,~~ Statement or any order preventing or suspending ~~or preventing~~ the use of any Preliminary Prospectus, ~~the Prospectus or~~ any Issuer Free Writing Prospectus or ~~suspending~~ the ~~qualification~~ Prospectus, or of the ~~Notes or the Guarantees for offering or sale in any jurisdiction, of the initiation or threatening~~ institution of any proceedings for ~~any such~~ that purpose or pursuant to Section 8A of the ~~Securities~~ Act~~, of receipt by the~~ . The Company or any Guarantor 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 (vi) will use its ~~reasonable~~ best efforts to prevent the issuance of any ~~stop order or other~~ such order ~~or any such notice of objection and, if a stop order or other such order is issued or any such notice of objection is received,~~ and to obtain as soon as possible the lifting ~~or withdrawal~~ thereof, if issued. Additionally, each of the Company and the Guarantors agree that it shall (i) pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act, (ii) comply with the provisions of Rules 424(b) and 430B, as applicable, under the Act, including with respect to the timely filing of documents thereunder and (iii) use its reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) were received in a timely manner by the Commission. (be) IfThe Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives, at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request. (f) Before amending or supplementing the Registration Statement, the General Disclosure Package or the Prospectus (including by way of a report filed under the Exchange Act and incorporated by reference therein) at any time ~~prior~~ during the Prospectus Delivery Period, the Company shall furnish to the Representatives a copy of each such proposed amendment or supplement and, and neither the Company nor the Guarantors shall file or use any such proposed amendment or supplement to which the Representatives reasonably object. (g) Each of the Company and the Guarantors will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the ~~Notes~~Securities as contemplated in this Agreement and the Prospectus. If during the Prospectus Delivery Period, any event ~~occurs~~ shall occur or ~~information becomes known that~~condition exist as a result of which it is necessary to amend or supplement the Registration Statement, in the ~~judgment of the Company or any of the Guarantors or in the opinion of the Representatives or counsel for the Underwriters, should be set forth in the~~ General Disclosure Package or the Prospectus ~~so that the Disclosure Package or the Prospectus, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary~~ in order to make the statements therein, in the light of the circumstances under which they were ~~made~~made or then prevailing, not misleading, or or, if it is necessary at any time to amend or supplement ~~or amend~~ the Registration Statement, the General Disclosure Package or the Prospectus ~~in order~~ to comply with ~~any~~ applicable law, the Company and the Guarantors ~~will forthwith~~ promptly shall notify the Representatives of any such event or condition and either (i) prepare and file with the Commission an appropriate amendment or supplement ~~or amendment thereto, and will expeditiously furnish~~ to the Representatives and counsel for the Underwriters a reasonable number of copies thereof. (c) The Company and the Guarantors will furnish to each of the Representatives and to counsel for the Underwriters such number of conformed copies of the Registration Statement, ~~as originally filed and each amendment thereto (excluding exhibits), any Preliminary Prospectus,~~ the ~~Final Term Sheet and any other Issuer Free Writing Prospectus,~~ General Disclosure Package or the Prospectus or (ii) prepare and ~~all amendments and supplements to any of such documents (other than any document filed~~ file with the Commission an appropriate filing under the Exchange Act ~~and deemed to~~ which shall be incorporated by reference in the Registration Statement, ~~any Preliminary Prospectus or~~ the ~~Prospectus), in each case as soon as available~~ General Disclosure Package and ~~in such quantities as the Representatives may from time to time reasonably request. (d) During the period in which~~ the Prospectus ~~relating to~~ so that the ~~Notes and the Guarantees (or in lieu thereof~~Registration Statement, the notice referred to in Rule 173(a) of the Rules and Regulations) is required to be delivered under the Securities Act, the Company and the Guarantors will comply with all requirements imposed upon it by the Securities Act and by the Rules and Regulations, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Notes as contemplated by the provisions of this Agreement and by the Prospectus. If during such period any event occurs as a result of which the General Disclosure Package or and the Prospectus as ~~then~~ so amended or supplemented ~~would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein~~will not, in the light of the circumstances under which they were made or then ~~existing~~prevailing, ~~not~~ be misleading, or 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 the Securities Act, the Company and the Guarantors will promptly notify the Representatives and will, subject to Section 4(a) hereof, amend so that the Registration Statement, ~~amend or supplement~~ the General Disclosure Package ~~or the Prospectus, as the case may be, or file any document (in each case, at the expense of the Company~~ and the ~~Guarantors) so as to correct such statement or omission or to effect such compliance, and~~ Prospectus will ~~furnish without charge to each Underwriter as many written and electronic copies of any such amendment or supplement as the Representatives may from time to time reasonably request~~comply with applicable law. (e) As soon as practicable, the Company will make generally available to its security holders and the Underwriters an earnings statement satisfying the requirements of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (fh) The Company shall endeavor to qualify the Securities for offer and ~~the Guarantors jointly and severally agree, whether or not this Agreement becomes effective or 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 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 and the Guarantors’ counsel; (v) the qualification of the Notes and the Guarantees under the securities or Blue Sky laws of ~~the several~~ such jurisdictions as ~~provided~~ you shall reasonably request and to continue such qualifications in Section 4(l) hereof and the preparation, printing and distribution of a Blue Sky Memorandum (including the related fees and reasonable expenses of counsel to the Underwriters); (vi) any rating of the Notes by rating agencies; (vii) the reasonable fees and expenses of counsel effect so long as is required for the Underwriters in connection with its review of the offering’s compliance with FINRA rules and the filing fees incident to FINRA’s review, if any, and approval of the Underwriters’ participation in the offering and distribution of the Notes (it being understood that the expenses described in clause (v) and this clause (vii) of this Section 4(f) shall not exceed, in the aggregate, $10,000); (viii) the services of the Trustee and any agent of the Trustee (including the fees and disbursements of counsel for the Trustee); (ix) any “road show” or other investor presentations relating to the offering of the Notes; and (x) otherwise incident to the performance by the Company and the Guarantors of their obligations hereunder for which provision is not otherwise made in this Section 4(f). It is understood, however, that, except as provided in this Section 4(f) or Sections 7 and 9 hereof, the Underwriters will pay all of their own costs and expenses, including the fees and expenses of counsel to the Underwriters and any advertising expenses incurred in connection with the offering of the Notes. (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~~Securities. (hi) The Company will apply the net proceeds from the sale of the ~~Notes~~ Securities as described in the ~~manner set forth in~~ Registration Statement, the ~~most recent Preliminary Prospectus~~ General Disclosure Package and the ~~Prospectus~~Prospectus under the heading “Use of Proceeds”. (ij) The Company shall make generally available to the Company’s and the Guarantors’ security holders and to the Representatives as soon as practicable an earnings statement of the Company and its subsidiaries that satisfies the provisions of Section 11(a) of the Act and the rules and regulations of the Commission thereunder. (k) During the period beginning on the date hereof and continuing to and including the Closing Date, ~~neither~~ not to offer, sell, contract to sell or otherwise dispose of any debt securities of the Company ~~nor any Guarantor will~~or warrants to purchase or otherwise acquire debt securities of the Company substantially similar to the Securities (other than (i) the Securities, ~~without~~ (ii) commercial paper issued in the ordinary course of business or (iii) securities or warrants permitted with 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 and the Guarantees (including, without limitation, with respect to the maturity, currency, interest rate and other material terms thereof). (j) The Company and the Guarantors will pay the required Commission filing fees relating to the Notes and the Guarantees 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) If required by Rule 430B(h) of the Rules and Regulations, the Company and the Guarantors 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 Company and the Guarantors will not file any amendment or supplement to such prospectus, which filing is not consented to by the Representatives promptly after reasonable notice thereof (such consent not to be unreasonably withheld or delayed). (l) ~~The Company and~~ If the ~~Guarantors will cooperate with~~ third anniversary of the ~~Representatives and with counsel~~ initial effective date of the Registration Statement occurs before all the Securities have been sold by the Underwriters, prior to the ~~Underwriters in connection with the qualification of the Notes~~ third anniversary to file a new shelf registration statement and ~~the Guarantees for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Underwriters may designate and will file such consents~~ to ~~service of process or~~ take any other ~~documents~~ action necessary ~~or appropriate in order to effect such qualification and~~ to permit the ~~continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the distribution~~ public offering of the ~~Notes and~~ Securities to continue without interruption; references herein to the ~~Guarantees; provided, however, that in no event will either~~ Registration Statement shall include the ~~Company or~~ new registration statement declared effective by the Guarantors be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than for actions or proceedings arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subjectCommission. (m) ~~Neither~~ The Company shall furnish to the holders of the Securities as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders’ equity and cash flows of the Company ~~nor~~ and its consolidated subsidiaries certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the first fiscal quarter ending after the Closing Date), to make available to the holders of the Securities consolidated summary financial information of the Company and its consolidated subsidiaries for such quarter in reasonable detail; provided that the Company shall not be required to furnish materials pursuant to this paragraph that are filed and publicly accessible via the XXXXX database. (n) During the period of two years after the Closing Date the Company will furnish to the Representatives (i) as soon as practicable after the end of each fiscal year, copies of the annual report of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, stockholders’ equity and cash flows for the year then ended and the opinion thereon of the Company’s independent public or certified public accountants (provided that if such information is contained in the reports referenced in clause (ii), this clause (i) will not require provision of any additional documentation); (ii) as soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other report filed by the Company with the Commission, or any securities exchange; and (iii) as soon as available, copies of any report or communication of the Company mailed generally to holders of its capital stock; provided that in no event shall the Company be required to furnish materials pursuant to this paragraph that are filed and publicly accessible via the XXXXX database. (o) The Company shall not invest or otherwise use the proceeds received by the Company from its sale of the Securities in such a manner as would require the Company or any of its subsidiaries to register as an investment company under the ~~Guarantors~~ Investment Company Act. (p) The Company will not take, directly or indirectly, any action designed to cause or result in, or ~~which could~~ that has constituted or might reasonably be expected to ~~cause~~ constitute, under the Exchange Act or ~~result in~~otherwise, the stabilization or manipulation of the price of any securities of the ~~Notes~~ Company to facilitate the sale or resale of the ~~Notes~~Securities. (nq) The Company will ~~comply~~ cooperate with ~~all agreements set forth in~~ the ~~representation letter of~~ Representatives and use its best efforts to permit the ~~Company~~ Securities to ~~DTC relating to the acceptance of the Notes~~ be eligible for ~~“book-entry” transfer~~ clearance and settlement through ~~the facilities of DTC~~The Depository Trust Company.

Appears in 1 contract

Samples: Underwriting Agreement (Molson Coors Brewing Co)

Covenants of the Company and the Guarantors. ~~The~~ Each of the Company and ~~each of~~ the ~~Guarantors,~~ Guarantors jointly and ~~severally, covenant and agree with each Underwriter that~~severally agrees: (a) ~~The Company and the Guarantors~~ To (i) ~~will prepare~~ advise the ~~Prospectus in a form approved~~ Initial Purchaser promptly after obtaining knowledge (and, if requested by the ~~Representatives and file the Prospectus pursuant to Rule 424(b~~Initial Purchaser, confirm such advice in writing) of ~~the Rules and Regulations within the time period prescribed by such Rule;~~ (iiA) will not file any amendment or supplement to the Registration Statement or the Prospectus or file any document under the Exchange Act before the termination of the offering of the Notes by the Underwriters 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 notice thereof (such consent not to be unreasonably withheld or delayed); (iii) will advise the Representatives, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement, the most recent Preliminary Prospectus or the Prospectus has been filed; (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; (v) will advise the Representatives promptly after it receives notice thereof, in each case, of the issuance by ~~the Commission or~~ any state ~~or other regulatory body~~ securities commission of any stop order ~~or any order suspending the effectiveness of the Registration Statement, suspending or preventing the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or~~ suspending the qualification or exemption from qualification of any of the Notes ~~or the Guarantees~~ for ~~offering~~ offer or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any state securities commission or other regulatory authority, or (B) the happening of any event that makes any statement of a material fact made in the Pricing Disclosure Package or the Final Offering Circular untrue or that requires the making of any additions to or changes in the Pricing Disclosure Package or the Final Offering Circular in order to make the statements therein, in the light of the ~~initiation or threatening of any proceedings for any such purpose or pursuant to Section 8A of the Securities Act~~circumstances under which they were made, of receipt by the Company or any Guarantor 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 Statementnot misleading, ~~the Prospectus or any Issuer Free Writing Prospectus or for additional information; and~~ (viii) ~~will~~ use its commercially reasonable ~~best~~ efforts to prevent the issuance of any stop order or order suspending the qualification or exemption from qualification of any of the Notes under any state securities or Blue Sky laws, and (iii) if, at any time, any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of any of the Notes under any such laws, use its commercially reasonable efforts to obtain the withdrawal or lifting of such order ~~or any such notice of objection and, if a stop order or other such order is issued or any such notice of objection is received, to obtain as soon as~~ at the earliest possible ~~the lifting or withdrawal thereof~~time. (b) IfTo (i) furnish the Initial Purchaser, without charge, with as many copies of the Preliminary Offering Circular, the Pricing Disclosure Package and the Final Offering Circular, and any amendments or supplements thereto, as the Initial Purchaser may reasonably request, and (ii) promptly prepare, upon the Initial Purchaser's reasonable request, any amendment or supplement to the Pricing Disclosure Package and the Offering Circular that the Initial Purchaser, upon advice of legal counsel, reasonably determine may be necessary in connection with Exempt Resales (and the Company hereby consents to the use of the Preliminary Offering Circular, the Pricing Disclosure Package and the Final Offering Circular, and any amendments and supplements thereto, by the Initial Purchaser in connection with Exempt Resales). (c) Not to amend or supplement the Pricing Disclosure Package or the Offering Circular prior to the Closing Date, or at any time prior to the completion of the ~~distribution~~ resale by the Initial Purchaser of all the Notes purchased by the Initial Purchaser, unless the Initial Purchaser shall previously have been advised thereof and shall have provided its written consent thereto. (d) So long as the Initial Purchaser shall hold any of the Notes, (i) if any event ~~occurs or information becomes known that~~shall occur as a result of which, in the reasonable judgment of the Company or ~~any of~~ the ~~Guarantors~~ Initial Purchaser, it becomes necessary or in advisable to amend or supplement the ~~opinion of the Representatives or counsel for the Underwriters, should be set forth in the~~ Pricing Disclosure Package or the ~~Prospectus so that~~ Final Offering Circular in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Pricing Disclosure Package or the ~~Prospectus~~Final Offering Circular to comply with Applicable Law, to prepare, at the expense of the Company, an appropriate amendment or supplement to the Pricing Disclosure Package or the Final Offering Circular (in form and substance reasonably satisfactory to the Initial Purchaser) so that (A) as ~~then~~ so amended or supplemented, ~~does~~ the Pricing Disclosure Package and the Final Offering Circular will not include ~~any~~ an untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) the Pricing Disclosure Package and the Final Offering Circular will comply with Applicable Law and (ii) if in the reasonable judgment of the Company it becomes necessary or ~~if it is necessary~~ advisable to amend or supplement ~~or amend~~ the Pricing Disclosure Package or the ~~Prospectus in order to comply with any law,~~ Final Offering Circular so that the ~~Company~~ Pricing Disclosure Package and the ~~Guarantors~~ Final Offering Circular will ~~forthwith~~ contain all of the information specified in, and meet the requirements of, Rule 144A(d)(4) of the Act, to prepare an appropriate amendment or supplement to the Pricing Disclosure Package or ~~amendment thereto~~the Final Offering Circular (in form and substance reasonably satisfactory to the Initial Purchaser) so that the Pricing Disclosure Package and the Final Offering Circular, as so amended or supplemented, will contain the information specified in, and ~~will expeditiously furnish to~~ meet the ~~Representatives and counsel for the Underwriters a reasonable number of copies thereof~~requirements of, such Rule. (ce) ~~The Company~~ To cooperate with the Initial Purchaser and the ~~Guarantors will furnish to each~~ Initial Purchaser's counsel in connection with the qualification of the ~~Representatives~~ Notes under the securities or Blue Sky laws of such jurisdictions as the Initial Purchaser may request and ~~to counsel~~ continue such qualification in effect so long as reasonably required for ~~the Underwriters such number of conformed copies~~ Exempt Resales. (f) Whether or not any of the ~~Registration Statement~~Offering or the transactions contemplated under the Documents are consummated or this Agreement is terminated, ~~as originally filed~~ to pay (i) all costs, expenses, fees and ~~each amendment thereto~~ taxes incident to and in connection with: (~~excluding exhibits)~~A) the preparation, ~~any~~ printing and distribution of the Preliminary ~~Prospectus~~Offering Circular, the Pricing Disclosure Package and the Final ~~Term Sheet and any other Issuer Free Writing Prospectus, the Prospectus~~ Offering Circular and all amendments and supplements ~~to any of such documents~~ thereto (~~other than any document filed under the Exchange Act~~ including, without limitation, financial statements and ~~deemed to be incorporated by reference in the Registration Statement, any Preliminary Prospectus or the Prospectus~~exhibits), ~~in each case as soon as available~~ and in such quantities as the Representatives may from time to time reasonably request. (d) During the period in which the Prospectus relating to the Notes and the Guarantees (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is required to be delivered under the Securities Act, the Company and the Guarantors will comply with all requirements imposed upon it by the Securities Act and by the Rules and Regulations, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Notes as contemplated by the provisions of this Agreement and by the Prospectus. If during such period any event occurs as a result of which the Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or 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 the Securities Act, the Company and the Guarantors will promptly notify the Representatives and will, subject to Section 4(a) hereof, amend the Registration Statement, amend or supplement the Disclosure Package or the Prospectus, as the case may be, or file any document (in each case, at the expense of the Company and the Guarantors) so as to correct such statement or omission or to effect such compliance, and will furnish without charge to each Underwriter as many written and electronic copies of any such amendment or supplement as the Representatives may from time to time reasonably request. (e) As soon as practicable, the Company will make generally available to its security holders and the Underwriters an earnings statement satisfying the requirements of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (f) The Company and the Guarantors jointly and severally agree, whether or not this Agreement becomes effective or 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 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~~ prepared and delivered in connection ~~with~~ herewith, (B) the ~~offering~~negotiation, ~~purchase~~printing, ~~sale~~ processing and distribution (including, without limitation, word processing and duplication costs) and delivery of, each of the Documents, (C) the preparation, issuance and delivery of the Notes; , (~~iii) the services of the Company’s independent registered public accounting firm; (iv) the services of the Company’s and the Guarantors’ counsel; (v~~D) the qualification of the Notes for offer and ~~the Guarantees~~ sale under the securities or Blue Sky laws of the several ~~jurisdictions as provided in Section 4(l~~states (including, without limitation, the fees and disbursements of the Initial Purchaser's counsel relating to such registration or qualification), (E) ~~hereof~~ furnishing such copies of the Preliminary Offering Circular, the Pricing Disclosure Package and the ~~preparation~~Final Offering Circular, ~~printing~~ and ~~distribution~~ all amendments and supplements thereto, as may reasonably be requested for use by the Initial Purchaser and (F) the performance of ~~a Blue Sky Memorandum~~ the obligations of the Company and the Guarantors under the Registration Rights Agreement, including but not limited to the Exchange Offer, the Exchange Offer Registration Statement and any Shelf Registration Statement, (ii) all fees and expenses of the counsel, accountants and any other experts or advisors retained by the Company, (iii) all expenses and listing fees in connection with the application for quotation of the Notes on the Private Offerings, Resales and Trading Automated Linkages ("PORTAL") market, (iv) all fees and expenses (including ~~the related~~ fees and ~~reasonable~~ expenses of ~~counsel to~~ counsel) of the ~~Underwriters); (vi) any rating~~ Company in connection with approval of the Notes by DTC for "book-entry" transfer, (v) all fees charged by rating ~~agencies;~~ agencies in connection with the rating of the Notes, (~~vii~~vi) ~~the~~ all fees and expenses (including reasonable fees and expenses of counsel for the Underwriters in connection with its review of the offering’s compliance with FINRA rules and the filing fees incident to FINRA’s review, if any, and approval of the Underwriters’ participation in the offering and distribution of the Notes (it being understood that the expenses described in clause (vcounsel) ~~and this clause (vii) of this Section 4(f) shall not exceed, in the aggregate, $10,000); (viii) the services~~ of the Trustee and ~~any agent~~ (vii) up to $250,000 of the ~~Trustee (including~~ fees, disbursements and out- of-pocket expenses incurred by the Initial Purchaser in connection with their services to be rendered hereunder including, without limitation, the reasonable fees and disbursements of Proskauer Rose LLP, counsel ~~for the Trustee); (ix) any “road show” or other investor presentations relating~~ to the ~~offering~~ Initial Purchaser, travel and lodging expenses, word processing charges, messenger and duplicating services, facsimile expenses and other customary expenditures. If the sale of the ~~Notes; and (x) otherwise incident~~ Notes provided for herein is not consummated because any condition to the ~~performance~~ obligations of the Initial Purchaser set forth in Section 7 hereof is not satisfied, because this Agreement is terminated pursuant to Section 9 hereof or because of any failure, refusal or inability on the part of the Company to perform all obligations and satisfy all conditions on its part to be performed or satisfied hereunder (other than in each such case solely by reason of a default by the ~~Company and the Guarantors of~~ Initial Purchaser on their obligations hereunder ~~for which provision is not otherwise made~~ after all conditions hereunder have been satisfied in ~~this Section 4(f~~accordance herewith)~~. It is understood, however, that, except as provided in this Section 4(f) or Sections 7 and 9 hereof~~, the ~~Underwriters will pay all~~ Company agrees to promptly reimburse the Initial Purchaser in cash upon demand for up to $250,000 of ~~their own costs~~ the fees, disbursements and ~~expenses~~out- of-pocket expenses (including reasonable fees, ~~including the fees and expenses~~ disbursements of Proskauer Rose LLP, counsel to Initial Purchaser) that shall have been incurred by the ~~Underwriters and any advertising expenses incurred~~ Initial Purchaser in connection with the ~~offering~~ proposed purchase and sale of the Notes. (g) ~~Until completion~~ To use the proceeds of the ~~distribution~~ Offering in the manner described in the Pricing Disclosure Package under the caption "Use of Proceeds." (h) To do and perform all things required to be done and performed under the Documents prior to and after the Closing Date. (i) Not to, and to ensure that no affiliate (as defined in Rule 501(b) of the Act) of the Company will, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) that would be integrated with the sale of the Notes in a manner that would require the registration under the Act of the sale to the Initial Purchaser or to the Subsequent Purchasers of the Notes. (j) For so long as any of the Notes remain outstanding, during any period in which the Company ~~will timely file all reports, documents and amendments to previously filed documents required to be filed by it pursuant~~ is not subject to Section ~~12, 13(a), 13(c), 14~~ 13 or 15(d) of the Exchange Act~~. (h) The Company will apply the net proceeds from the sale~~ , to make available, upon request, to any owner of the Notes in connection with any sale thereof and any prospective Subsequent Purchasers of such Notes from such owner, the manner set forth in the most recent Preliminary Prospectus and the Prospectus. (i) During the period beginning on the date hereof and continuing to and including the Closing Date, neither the Company nor any Guarantor will, 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 and the Guarantees (including, without limitation, with respect to the maturity, currency, interest rate and other material terms thereof). (j) The Company and the Guarantors will pay the required Commission filing fees relating to the Notes and the Guarantees within the time period information required by Rule ~~456(b)(1~~144A(d)(4) of under 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~~Act. (k) If required by Rule 430B(h) of the Rules and Regulations, the Company and the Guarantors 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 Company and the Guarantors will not file any amendment or supplement to such prospectus, which filing is not consented to by the Representatives promptly after reasonable notice thereof (such consent not to be unreasonably withheld or delayed). (l) The Company and the Guarantors will cooperate with the Representatives and with counsel to the Underwriters in connection with the qualification of the Notes and the Guarantees for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Underwriters may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualification and to permit the continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the distribution of the Notes and the Guarantees; provided, however, that in no event will either the Company or the Guarantors be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than for actions or proceedings arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject. (m) Neither the Company nor any of the Guarantors will take, directly or indirectly, any action designed to cause or result in, or which could reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Notes to facilitate the sale or resale of the Notes. (n) The Company will To comply with ~~all agreements set forth in~~ the representation letter of the Company to DTC relating to the ~~acceptance~~ approval of the Notes by DTC for ~~“book~~"book entry" transfer. (l) To use its commercially reasonable efforts to effect the inclusion of the Notes in Private Offerings, Resales and Trading through Automated Linkages Market. (m) For so long as any of the Notes remain outstanding, the Company will furnish to the Initial Purchaser copies of all reports and other communications (financial or otherwise) furnished by the Company to the Trustee or to the holders of the Notes and, as soon as available, copies of any reports or financial statements furnished to or filed by the Company with the SEC or any national or foreign securities exchange on which any class of securities of the Company may be listed. (n) Except in connection with the Exchange Offer or the filing of the Shelf Registration Statement, not to, and not to authorize or permit any person acting on its behalf to, (i) distribute any offering material in connection with the offer and sale of the Notes other than the Preliminary Offering Circular, the Pricing Disclosure Package and the Final Offering Circular and any amendments and supplements to the Pricing Disclosure Package and the Final Offering Circular prepared in compliance with this Agreement, or (ii) solicit any offer to buy or offer to sell the Notes by means of any form of general solicitation or general advertising (including, without limitation, as such terms are used in Regulation D under the Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Act. (o) During the two year period after the Closing Date (or such shorter period as may be provided for in Rule 144(k) under the Act, as the same may be in effect from time to time), to not, and to not permit any current or future Subsidiaries of either the Company or any other affiliates (as defined in Rule 144A under the Act) controlled by the Company to, resell any of the Notes which constitute "restricted securities" under Rule 144 that have been reacquired by the Company, any current or future Subsidiaries or any other "affiliates" (as defined in Rule 144A under the Act) controlled by the Company, except pursuant to an effective registration statement under the Act. (p) The Company shall pay all stamp, documentary and transfer taxes and other duties, if any, which may be imposed by the United States or any political subdivision thereof or taxing authority thereof or therein with respect to the issuance of the Notes or the sale thereof to the Initial Purchaser. (q) To use their best efforts to complete on or prior to the Closing Date all filings and other similar actions required in connection with the perfection of security interests as and to the extent contemplated by the Collateral Agreements. (r) To deliver to the Initial Purchaser on and as of the Closing Date satisfactory evidence of the good standing of the Company and the Guarantors in their respective jurisdictions of organization and the good standing of the Company and its subsidiaries in such other jurisdictions as the Initial Purchaser may reasonably request, in each case in writing or any standard form of telecommunication, from the appropriate governmental authorities of such jurisdictions. (s) To file on the Closing Date a certificate of merger with the Secretary of State of the State of Delaware to consummate the Back-~~entry” transfer through~~ end Merger and to cause XX Xxxx'x and its subsidiaries to execute a counterpart to this Agreement in the ~~facilities of DTC~~form attached as Exhibit C hereto upon the Closing Date.

Appears in 1 contract

Samples: Purchase Agreement (TB Wood's INC)

Covenants of the Company and the Guarantors. ~~The~~ Each of the Company and ~~each of~~ the ~~Guarantors,~~ Guarantors jointly and ~~severally, covenant and agree with each Underwriter that~~severally agrees: (a) ~~The Company and the Guarantors~~ To (i) ~~will prepare~~ advise the ~~Prospectus in a form approved~~ Initial Purchasers promptly after obtaining knowledge (and, if requested by the ~~Representatives and file the Prospectus pursuant to Rule 424(b~~Initial Purchasers, confirm such advice in writing) of ~~the Rules and Regulations within the time period prescribed by such Rule;~~ (iiA) will not file any amendment or supplement to the Registration Statement or the Prospectus or file any document under the Exchange Act before the termination of the offering of the Notes by the Underwriters 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 notice thereof (such consent not to be unreasonably withheld or delayed); (iii) will advise the Representatives, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement, the most recent Preliminary Prospectus or the Prospectus has been filed; (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; (v) will advise the Representatives promptly after it receives notice thereof, in each case, of the issuance by ~~the Commission or~~ any state ~~or other regulatory body~~ securities commission of any stop order ~~or any order suspending the effectiveness of the Registration Statement, suspending or preventing the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or~~ suspending the qualification or exemption from qualification of any of the ~~Notes or the Guarantees~~ Offered Securities for ~~offering~~ offer or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any state securities commission or other regulatory authority, or (B) the happening of any event that makes any statement of a material fact made in the Time of Sale Document or the Final Offering Memorandum untrue or that requires the making of any additions to or changes in the Time of Sale Document or the Final Offering Memorandum in order to make the statements therein, in the light of the ~~initiation or threatening of any proceedings for any such purpose or pursuant to Section 8A of the Securities Act~~circumstances under which they were made, of receipt by the Company or any Guarantor 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 Statementnot misleading, ~~the Prospectus or any Issuer Free Writing Prospectus or for additional information; and~~ (viii) ~~will~~ use its commercially reasonable ~~best~~ efforts to prevent the issuance of any stop order or order suspending the qualification or exemption from qualification of any of the Offered Securities under any state securities or Blue Sky laws, and (iii) if, at any time, any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of any of the Offered Securities under any such laws, use its reasonable best efforts to obtain the withdrawal or lifting of such order ~~or any such notice of objection and, if a stop order or other such order is issued or any such notice of objection is received, to obtain as soon as~~ at the earliest possible ~~the lifting or withdrawal thereof~~time. (b) IfTo (i) furnish the Initial Purchasers, without charge, as many copies of the Time of Sale Document and the Final Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request, and (ii) promptly prepare, upon the Initial Purchasers’ reasonable request, any amendment or supplement to the Time of Sale Document and the Final Offering Memorandum that the Initial Purchasers, upon advice of legal counsel, determines may be necessary in connection with Exempt Resales (and the Company hereby consents to the use of the Time of Sale Document and the Final Offering Memorandum, and any amendments and supplements thereto, by the Initial Purchasers in connection with Exempt Resales). (c) Not to amend or supplement the Time of Sale Document or the Final Offering Memorandum prior to the last possible Closing Date, or at any time prior to the completion of the resale by the Initial Purchasers of all the Securities purchased by the Initial Purchasers, unless the Initial Purchasers shall previously have been advised thereof and shall have been given reasonable opportunity to comment thereon and shall not have objected thereto. (d) Prior to the time the Initial Purchasers have completed their distribution of the ~~Notes~~Offered Securities and for so long as the Initial Purchasers shall hold any of the Securities, (i) if any event ~~occurs or information becomes known that~~shall occur as a result of which, in the reasonable judgment of the Company or ~~any~~ the Initial Purchasers, it becomes necessary or advisable to amend or supplement the Time of Sale Document or the Final Offering Memorandum in order to make the statements therein, in the light of the ~~Guarantors~~ circumstances under which they were made, not misleading, or in if it is necessary to amend or supplement the ~~opinion~~ Time of Sale Document or the Final Offering Memorandum to comply with Applicable Law, to prepare, at the expense of the ~~Representatives~~ Company, an appropriate amendment or ~~counsel for~~ supplement to the ~~Underwriters, should be set forth in the Disclosure Package~~ Time of Sale Document or the ~~Prospectus~~ Final Offering Memorandum (in form and substance reasonably satisfactory to the Initial Purchasers) so that ~~the Disclosure Package or the Prospectus,~~ (A) as ~~then~~ so amended or supplemented, ~~does~~ the Time of Sale Document and the Final Offering Memorandum will not include ~~any~~ an untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) the Time of Sale Document and the Final Offering Memorandum will comply with Applicable Law and (ii) if in the reasonable judgment of the Company it becomes necessary or ~~if it is necessary~~ advisable to amend or supplement ~~or amend~~ the ~~Disclosure Package~~ Time of Sale Document or the ~~Prospectus in order to comply with any law,~~ Final Offering Memorandum so that the ~~Company~~ Time of Sale Document and the ~~Guarantors~~ Final Offering Memorandum will ~~forthwith~~ contain all of the information specified in, and meet the requirements of, Rule 144A(d)(4) of the Act, to prepare an appropriate amendment or supplement to the Time of Sale Document or ~~amendment thereto~~the Final Offering Memorandum (in form and substance reasonably satisfactory to the Initial Purchasers) so that the Time of Sale Document and the Final Offering Memorandum, as so amended or supplemented, will contain the information specified in, and ~~will expeditiously furnish to~~ meet the ~~Representatives and counsel for~~ requirements of, Rule 144A(d)(4) of the ~~Underwriters a reasonable number of copies thereof~~Act. (ce) ~~The Company~~ To cooperate with the Initial Purchasers and their counsel in connection with the qualification of the Offered Securities under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and continue such qualification in effect so long as reasonably required for Exempt Resales. (f) Whether or not any of the Offering or the transactions contemplated by the Documents are consummated or this Agreement is terminated, to pay (i) all costs, expenses, fees and taxes incident to and in connection with: (A) the preparation, printing and distribution of the Time of Sale Document and the Guarantors will furnish to each of the Representatives and to counsel for the Underwriters such number of conformed copies of the Registration Statement, as originally filed and each amendment thereto (excluding exhibits), any Preliminary Prospectus, the Final ~~Term Sheet and any other Issuer Free Writing Prospectus, the Prospectus~~ Offering Memorandum and all amendments and supplements ~~to any of such documents~~ thereto (~~other than any document filed under the Exchange Act~~ including, without limitation, financial statements and ~~deemed to be incorporated by reference in the Registration Statement, any Preliminary Prospectus or the Prospectus~~exhibits), ~~in each case as soon as available~~ and in such quantities as the Representatives may from time to time reasonably request. (d) During the period in which the Prospectus relating to the Notes and the Guarantees (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is required to be delivered under the Securities Act, the Company and the Guarantors will comply with all requirements imposed upon it by the Securities Act and by the Rules and Regulations, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Notes as contemplated by the provisions of this Agreement and by the Prospectus. If during such period any event occurs as a result of which the Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or 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 the Securities Act, the Company and the Guarantors will promptly notify the Representatives and will, subject to Section 4(a) hereof, amend the Registration Statement, amend or supplement the Disclosure Package or the Prospectus, as the case may be, or file any document (in each case, at the expense of the Company and the Guarantors) so as to correct such statement or omission or to effect such compliance, and will furnish without charge to each Underwriter as many written and electronic copies of any such amendment or supplement as the Representatives may from time to time reasonably request. (e) As soon as practicable, the Company will make generally available to its security holders and the Underwriters an earnings statement satisfying the requirements of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (f) The Company and the Guarantors jointly and severally agree, whether or not this Agreement becomes effective or 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 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~~ prepared and delivered in connection ~~with~~ herewith, (B) the ~~offering~~negotiation, ~~purchase~~printing, ~~sale~~ processing and distribution (including, without limitation, word processing and duplication costs) and delivery of each of the Documents, (C) the preparation, issuance and delivery of the ~~Notes;~~ Offered Securities and any PIK Additional Securities that may be issued, (~~iii~~D) the ~~services~~ qualification of the ~~Company’s independent registered public accounting firm;~~ Offered Securities and any PIK Additional Securities that may be issued for offer and sale under the securities or Blue Sky laws of the several states (ivincluding, without limitation, the fees and disbursements of counsel to the Initial Purchasers relating to such registration or qualification), (E) furnishing such copies of the Time of Sale Document and the Final Offering Memorandum, and all amendments and supplements thereto, as may reasonably be requested for use by the Initial Purchasers and (F) the ~~services~~ performance of the Company’s and the Guarantors’ obligations under the Registration Rights Agreement, including, but not limited to, (i) the preparation and filing with the SEC of the Shelf Registration Statement, (ii) all fees and expenses of the counsel; , accountants and any other experts or advisors retained by the Company and the Guarantors, (iii) all expenses and listing fees in connection with the application for quotation of the Offered Securities and any PIK Additional Securities that may be issued on the Private Offerings, Resales and Trading Automated Linkages (“PORTAL”) Market, (iv) all fees and expenses (including fees and expenses of counsel) of the Company in connection with approval of the Offered Securities and any PIK Additional Securities that may be issued by DTC for “book-entry” transfer, (v) ~~the qualification of the Notes~~ all fees and ~~the Guarantees 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~~ expenses (including ~~the related fees and reasonable expenses of counsel to the Underwriters); (vi) any rating of the Notes by rating agencies; (vii) the~~ reasonable fees and expenses of counsel for the Underwriters in connection with its review of the offering’s compliance with FINRA rules and the filing fees incident to FINRA’s review, if any, and approval of the Underwriters’ participation in the offering and distribution of the Notes (it being understood that the expenses described in clause (vcounsel) ~~and this clause (vii) of this Section 4(f) shall not exceed, in the aggregate, $10,000); (viii) the services~~ of the Trustee and ~~any agent~~ all collateral agents, (vi) all costs and expenses in connection with the creation and perfection of the ~~Trustee~~ Collateral Agreements (including without limitation, filing and recording fees, search fees, taxes and costs of title policies), and (vii) all reasonable fees, disbursements and out-of-pocket expenses incurred by the Initial Purchasers in connection with their services to be rendered hereunder including, without limitation, the fees and disbursements of counsel for the Trustee); (ix) any “road show” or other investor presentations relating to the offering of the Notes; and (x) otherwise incident to the performance by the Company and the Guarantors of their obligations hereunder for which provision is not otherwise made in this Section 4(f). It is understoodPaul, ~~however~~Hastings, ~~that~~Xxxxxxxx & Xxxxxx LLP, ~~except as provided in this Section 4(f) or Sections 7 and 9 hereof, the Underwriters will pay all of their own costs and expenses, including the fees and expenses of~~ counsel to the ~~Underwriters~~ Initial Purchasers, travel and ~~any advertising~~ lodging expenses, word processing charges, messenger and duplicating services, facsimile expenses ~~incurred in connection with the offering of the Notes~~and other customary expenditures. (g) ~~Until completion~~ To use the proceeds of the ~~distribution~~ Offering in the manner described in the Time of Sale Document and the ~~Notes,~~ Final Offering Memorandum under the ~~Company will timely file~~ caption “Use of Proceeds.” (h) To do and perform all ~~reports, documents and amendments to previously filed documents~~ things required to be ~~filed by it pursuant~~ done and performed under the Documents prior to and after any Closing Date. (i) Not to, and to ensure that no affiliate (as defined in Rule 501(b) of the Act) of the Company will, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any “security” (as defined in the Act) that would be integrated with the sale of the Offered Securities in a manner that would require the registration under the Act of the sale to the Initial Purchasers or to the Subsequent Purchasers of the Offered Securities. (j) For so long as any of the Offered Securities and any PIK Additional Securities that may be issued remain outstanding, during any period in which the Company is not subject to Section ~~12, 13(a), 13(c), 14~~ 13 or 15(d) of the Exchange Act~~. (h) The Company will apply the net proceeds from the sale~~ , to make available, upon request, to any owner of the ~~Notes~~ Offered Securities and any PIK Additional Securities that may be issued in connection with any sale thereof and any prospective Subsequent Purchasers of such Offered Securities and any PIK Additional Securities that may be issued from such owner, the manner set forth in the most recent Preliminary Prospectus and the Prospectus. (i) During the period beginning on the date hereof and continuing to and including the Closing Date, neither the Company nor any Guarantor will, 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 and the Guarantees (including, without limitation, with respect to the maturity, currency, interest rate and other material terms thereof). (j) The Company and the Guarantors will pay the required Commission filing fees relating to the Notes and the Guarantees within the time period information required by Rule ~~456(b)(1~~144A(d)(4) of under 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~~Act. (k) If required by Rule 430B(h) of the Rules and Regulations, the Company and the Guarantors 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 Company and the Guarantors will not file any amendment or supplement to such prospectus, which filing is not consented to by the Representatives promptly after reasonable notice thereof (such consent not to be unreasonably withheld or delayed). (l) The Company and the Guarantors will cooperate with the Representatives and with counsel to the Underwriters in connection with the qualification of the Notes and the Guarantees for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Underwriters may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualification and to permit the continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the distribution of the Notes and the Guarantees; provided, however, that in no event will either the Company or the Guarantors be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than for actions or proceedings arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject. (m) Neither the Company nor any of the Guarantors will take, directly or indirectly, any action designed to cause or result in, or which could reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Notes to facilitate the sale or resale of the Notes. (n) The Company will To comply with ~~all agreements set forth in~~ the representation letter of the Company to DTC relating to the ~~acceptance~~ approval of the ~~Notes~~ Offered Securities and any PIK Additional Securities that may be issued by DTC for “~~book-~~book entry” transfer. (l) To use its best efforts to effect the inclusion of the Offered Securities and any PIK Additional Securities that may be issued in the PORTAL Market. (m) For so long as any of the Offered Securities and any PIK Additional Securities that may be issued remain outstanding, the Company will furnish to the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by the Company to the Trustee or to the holders of the Offered Securities and any PIK Additional Securities that may be issued and, as soon as available, copies of any reports or financial statements furnished to or filed by the Company with the SEC or any national securities exchange on which any class of securities of the Company may be listed. (n) Except in connection with the filing of the Shelf Registration Statement, not to, and not to authorize or permit any person acting on its behalf to, (i) distribute any offering material in connection with the offer and sale of the Offered Securities or any PIK Additional Securities that may be issued other than the Time of Sale Document and the Final Offering Memorandum and any amendments and supplements to the Final Offering Memorandum prepared in compliance with this Agreement, or (ii) solicit any offer to buy or offer to sell the Offered Securities or any PIK Additional Securities that may be issued by means of any form of general solicitation or general advertising (including, without limitation, as such terms are used in Regulation D under the Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Act. (o) During the two year period after the last possible Closing Date (or such shorter period as may be provided for in Rule 144(k) under the Act, as the same may be in effect from time to time), to not, and to not permit any current or future Subsidiaries of either the Company or any other affiliates (as defined in Rule 144A under the Act) controlled by the Company to, resell any of the Offered Securities and any PIK Additional Securities that may be issued which constitute “restricted securities” under Rule 144 that have been reacquired by the Company, any current or future Subsidiaries or any other “affiliates” (as defined in Rule 144A under the Act) controlled by the Company, except pursuant to an effective registration statement under the Act. (p) The Company shall pay all stamp, documentary and transfer ~~through~~ taxes and other duties, if any, which may be imposed by the ~~facilities~~ United States or any political subdivision thereof or taxing authority thereof or therein with respect to the issuance of ~~DTC~~the Offered Securities and any PIK Additional Securities that may be issued or the sale thereof to the Initial Purchasers. (q) To file, on a timely basis, with the SEC and the Nasdaq Global Market all reports and documents required to be filed under the Exchange Act. (r) To use its best efforts to: (i) obtain a letter from the Nasdaq Global Market to the effect that the Nasdaq Global Market concurs with the Company’s view that the issuance of the Securities pursuant to the terms hereof and of the Securities and the Indenture does not require shareholder approval, (ii) obtain the approval by the Nasdaq Global Market of the Company’s listing application for the Shares up to the Share Cap to be issued upon conversion of the Securities and the approval of such Shares for quotation on the Nasdaq Global Market and (iii) maintain the inclusion and quotation of its shares of Common Stock, including the Shares, on the Nasdaq Global Market or another national securities exchange. (s) To comply with all of their agreements set forth in the Registration Rights Agreement. (t) Until the Initial Purchasers shall have notified the Company of the completion of the resales of the Securities, not to, and not to permit any of their affiliated purchasers (as such term is defined in Regulation M under the Exchange Act) to, either alone or with one or more other persons, bid for or purchase for any account in which they or any of their affiliated purchasers has a beneficial interest in any Securities or shares of the Common Stock of the Company in violation of Regulation M; and none of the Company or any of its affiliated purchasers will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Securities or the shares of Common Stock of the Company. (u) The Company will reserve and keep available at all times, free of preemptive or other similar rights and liens and adverse claims, sufficient shares of Common Stock to satisfy its obligation to issue such Shares upon conversion of the Offered Securities and all of the PIK Additional Securities that the Company may elect to issue pursuant to the Offered Securities and the Indenture. (v) The Company shall use its best efforts to obtain, as promptly as practical, the required approval of its shareholders of the terms of the Securities and the issuance of the Shares in excess of the Share Cap upon the conversion thereof pursuant to the terms of the Securities and the Indenture and to obtain the approval by the Nasdaq Global Market or such other national securities exchange on which the Company’s Common Stock is then listed of the Company’s listing application for the Shares in excess of the Shares Cap to be issued upon conversion of the Securities and the approval of such Shares for quotation on the Nasdaq Global Market or such other national securities exchange.

Appears in 1 contract

Samples: Purchase Agreement (FiberTower CORP)

Covenants of the Company and the Guarantors. ~~The~~ Each of the Company and ~~each of~~ the ~~Guarantors, jointly and severally, covenant and agree~~ Guarantors agrees with ~~each Underwriter~~ the Initial Purchaser that: (a) ~~The Company and~~ At any time prior to the ~~Guarantors (i) will prepare the Prospectus in a form approved by the Representatives and file the Prospectus pursuant to Rule 424(b)~~ date of the Rules and Regulations within the time period prescribed by such Rule; (ii) will not file any amendment or supplement to the Registration Statement or the Prospectus or file any document under the Exchange Act before the termination completion of the ~~offering~~ resale of the Notes by the ~~Underwriters~~ Initial Purchaser, to (i) advise the Initial Purchaser as promptly as practicable after obtaining knowledge (and, if ~~such document would be deemed to be incorporated by reference into the Prospectus, which filing is not consented to~~ requested by the ~~Representatives after reasonable notice thereof (~~Initial Purchaser, confirm such consent not to be unreasonably withheld or delayed); (iii) will advise the Representatives, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement, the most recent Preliminary Prospectus or the Prospectus has been filed; (iv) will prepare the Final Term Sheet, substantially advice in ~~the form of Schedule III hereto and approved by the Representatives and file the Final Term Sheet pursuant to Rule 433(d~~writing) of ~~the Rules and Regulations within the time period prescribed by such Rule;~~ (vA) ~~will advise the Representatives promptly after it receives notice thereof, in each case, of~~ the issuance by ~~the Commission or~~ any state ~~or other regulatory body~~ securities commission of any stop order ~~or any order suspending the effectiveness of the Registration Statement, suspending or preventing the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or~~ suspending the qualification or exemption from qualification of any of the Notes ~~or the Guarantees~~ for ~~offering~~ offer or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any state securities commission or other regulatory authority, or (B) the happening of any event that makes any statement of a material fact made in the Pricing Disclosure Package, any Company Additional Written Communication untrue or that requires the making of any additions to or changes in the Pricing Disclosure Package, any Company Additional Written Communication in order to make the statements therein, in the light of the ~~initiation or threatening of any proceedings for any such purpose or pursuant to Section 8A of the Securities Act~~circumstances under which they were made, of receipt by the Company or any Guarantor 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 Statementnot misleading, ~~the Prospectus or any Issuer Free Writing Prospectus or for additional information; and~~ (viii) ~~will~~ use its reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption from qualification of any of the Notes under any state securities or Blue Sky laws, and (iii) if, at any time, any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of any of the Notes under any such laws, use its reasonable best efforts to obtain the withdrawal or lifting of such order ~~or any such notice of objection and, if a stop order or other such order is issued or any such notice of objection is received, to obtain as soon as~~ at the earliest possible ~~the lifting or withdrawal thereof~~time. (b) IfTo (i) furnish the Initial Purchaser, without charge, as many copies of the Pricing Disclosure Package, and any amendments or supplements thereto, as the Initial Purchaser may reasonably request, and (ii) promptly prepare, upon the Initial Purchaser’s reasonable request, any amendment or supplement to the Pricing Disclosure Package that the Initial Purchaser, upon advice of legal counsel, determines may be necessary in connection with Exempt Resales (and the Company and the Guarantors hereby consent to the use of the Pricing Disclosure Package, and any amendments and supplements thereto, by the Initial Purchaser in connection with Exempt Resales). (c) Not to amend or supplement the Pricing Disclosure Package prior to the Closing Date, or at any time prior to the completion of the ~~distribution~~ resale by the Initial Purchaser of all the Notes purchased by the Initial Purchaser, unless the Initial Purchaser shall previously have been advised thereof and shall have provided their written consent thereto. Before making, preparing, using, authorizing, approving or referring to any Company Additional Written Communications, the Company will furnish to the Initial Purchaser and counsel for the Initial Purchaser a copy of such written communication for review and will not make, prepare, use, authorize, approve or refer to any such written communication to which the Initial Purchaser reasonably object. (d) So long as the Initial Purchaser shall hold any of the Notes, (i) if any event ~~occurs or information becomes known that~~shall occur as a result of which, in the reasonable judgment of the Company or any of the ~~Guarantors~~ Initial Purchaser, it becomes necessary or advisable to amend or supplement the Pricing Disclosure Package in order to make the statements therein, in the ~~opinion~~ light of the ~~Representatives~~ circumstances under which they were made, not misleading, or ~~counsel for~~ if it is necessary to amend or supplement the ~~Underwriters, should be set forth in the~~ Pricing Disclosure Package to comply with Applicable Law, to prepare, at the expense of the Company, an appropriate amendment or supplement to the ~~Prospectus~~ Pricing Disclosure Package (in form and substance reasonably satisfactory to the Initial Purchaser so that ~~the Disclosure Package or the Prospectus,~~ (A) as ~~then~~ so amended or supplemented, ~~does~~ the Pricing Disclosure Package will not include ~~any~~ an untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, ~~or if it is necessary to supplement or amend~~ and (B) the Pricing Disclosure Package ~~or the Prospectus in order to~~ will comply with ~~any law,~~ Applicable Law and (ii) if in the reasonable judgment of the Company it becomes necessary or advisable to amend or supplement the Pricing Disclosure Package so that the Pricing Disclosure Package will contain all of the information specified in, and meet the ~~Guarantors will forthwith~~ requirements of, Rule 144A(d)(4) of the Securities Act, to prepare an appropriate amendment or supplement ~~or amendment thereto, and will expeditiously furnish~~ to the ~~Representatives~~ Pricing Disclosure Package (in form and ~~counsel for the Underwriters a reasonable number of copies thereof. (c) The Company and the Guarantors will furnish~~ substance reasonably satisfactory to each of the ~~Representatives~~ Initial Purchaser) so that the Pricing Disclosure Package, as so amended or supplemented, will contain the information specified in, and to meet the requirements of, such rule. (e) To cooperate with the Initial Purchaser and the Initial Purchaser’s counsel ~~for~~ in connection with the ~~Underwriters such number of conformed copies~~ qualification of the ~~Registration Statement~~Notes under the securities or Blue Sky laws of such jurisdictions as the Initial Purchaser may request and continue such qualification in effect so long as reasonably required for Exempt Resales. (f) Whether or not any of the Transactions contemplated under the Transaction Documents are consummated or this Agreement is terminated, ~~as originally filed~~ to pay (i) all costs, expenses, fees and ~~each amendment thereto~~ taxes incident to and in connection with: (~~excluding exhibits)~~A) the preparation, ~~any Preliminary Prospectus,~~ printing and distribution of the ~~Final Term Sheet and any other Issuer Free Writing Prospectus, the Prospectus~~ Pricing Disclosure Package and all amendments and supplements ~~to any of such documents~~ thereto (~~other than any document filed under the Exchange Act~~ including, without limitation, financial statements and ~~deemed to be incorporated by reference in the Registration Statement, any Preliminary Prospectus or the Prospectus~~exhibits), ~~in each case as soon as available~~ and in such quantities as the Representatives may from time to time reasonably request. (d) During the period in which the Prospectus relating to the Notes and the Guarantees (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is required to be delivered under the Securities Act, the Company and the Guarantors will comply with all requirements imposed upon it by the Securities Act and by the Rules and Regulations, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Notes as contemplated by the provisions of this Agreement and by the Prospectus. If during such period any event occurs as a result of which the Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or 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 the Securities Act, the Company and the Guarantors will promptly notify the Representatives and will, subject to Section 4(a) hereof, amend the Registration Statement, amend or supplement the Disclosure Package or the Prospectus, as the case may be, or file any document (in each case, at the expense of the Company and the Guarantors) so as to correct such statement or omission or to effect such compliance, and will furnish without charge to each Underwriter as many written and electronic copies of any such amendment or supplement as the Representatives may from time to time reasonably request. (e) As soon as practicable, the Company will make generally available to its security holders and the Underwriters an earnings statement satisfying the requirements of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (f) The Company and the Guarantors jointly and severally agree, whether or not this Agreement becomes effective or 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 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~~ prepared and delivered in connection ~~with~~ herewith, (B) the ~~offering~~negotiation, ~~purchase~~printing, ~~sale~~ processing and distribution (including, without limitation, word processing and duplication costs) and delivery of, each of the Transaction Documents, (C) the preparation, issuance and delivery of the Notes; , (~~iii) the services of the Company’s independent registered public accounting firm; (iv) the services of the Company’s and the Guarantors’ counsel; (v~~D) the qualification of the Notes for offer and ~~the Guarantees~~ sale under the securities or Blue Sky laws of the several ~~jurisdictions~~ states (including, without limitation, the fees and disbursements of the Initial Purchaser’s counsel relating to such registration or qualification), (E) furnishing such copies of the Pricing Disclosure Package, and all amendments and supplements thereto, as ~~provided in Section 4(l~~may reasonably be requested for use by the Initial Purchaser, and (F) ~~hereof~~ the performance of the obligations of the Company and the ~~preparation~~Guarantors obligations under the Registration Rights Agreement, ~~printing~~ including but not limited to the Exchange Offer and ~~distribution~~ any Shelf Registration Statement (ii) all fees and expenses of ~~a Blue Sky Memorandum~~ the counsel, accountants and any other experts or advisors retained by the Company, (iii) all fees and expenses (including ~~the related~~ fees and ~~reasonable~~ expenses of ~~counsel to~~ counsel) of the ~~Underwriters); (vi) any rating~~ Company in connection with approval of the Notes by DTC for “book-entry” transfer, (iv) all fees charged by rating ~~agencies;~~ agencies in connection with the rating of the Notes, (~~vii~~v) ~~the~~ all fees and expenses (including reasonable fees and expenses of ~~counsel for~~ counsel) of the ~~Underwriters~~ Trustee and all collateral agents, (vi) all costs and expenses in connection with the perfection of the security interests under the Security Agreement (including without limitation, filing and recording fees, search fees, taxes and costs of title policies) and (vii) all reasonable fees, disbursements and out-of-pocket expenses incurred by the Initial Purchaser in connection with its ~~review of the offering’s compliance with FINRA rules and the filing fees incident~~ services to ~~FINRA’s review~~be rendered hereunder (including, ~~if any~~without limitation, and approval of the Underwriters’ participation in the offering and distribution of the Notes (it being understood that the expenses described in clause (v) and this clause (vii) of this Section 4(f) shall not exceed, in the aggregate, $10,000); (viii) the services of the Trustee and any agent of the Trustee (including the fees and ~~disbursements~~ expenses of Proskauer Rose LLP as counsel ~~for~~ to the ~~Trustee~~Initial Purchaser)~~; (ix)~~ , travel and lodging expenses, word processing charges, messenger and duplicating services, facsimile expenses, costs and expenses relating to investor presentations on any “road show” or undertaken in connection with marketing the Notes and other ~~investor presentations relating~~ customary expenditures. If the sale of the Notes provided for herein is not consummated because any condition to the ~~offering~~ to the obligations of the ~~Notes;~~ Initial Purchaser set forth in Section 7 is not satisfied, because this Agreement is terminated pursuant to Section 9 or because of any failure, refusal or inability on the part of the Company to perform all obligations and satisfy all conditions on its part to be performed or satisfied hereunder (~~x) otherwise incident to the performance~~ other than in each case solely by reason of a default by the ~~Company and the Guarantors of their~~ Initial Purchaser on its obligations hereunder ~~for which provision is not otherwise made~~ after all conditions hereunder have been satisfied in ~~this Section 4(f~~accordance herewith)~~. It is understood, however, that, except as provided in this Section 4(f) or Sections 7 and 9 hereof~~, the ~~Underwriters will pay~~ Company agrees to promptly reimburse the Initial Purchaser for all ~~of their own costs~~ fees, disbursements and ~~expenses,~~ out-of-pocket expenses (including the fees and expenses of Proskauer Rose LLP as counsel to for the ~~Underwriters~~ Initial Purchaser), travel and ~~any advertising~~ lodging expenses, word processing charges, messenger and duplicating services, facsimile expenses and other reasonable and customary expenditures) that shall have been incurred by the Initial Purchaser in connection with the ~~offering~~ proposed purchase and sale of the Notes. (g) ~~Until completion~~ To use the proceeds of the ~~distribution~~ Offering in the manner described in the Pricing Disclosure Package under the caption “Use of Proceeds.” (h) To do and perform all things required to be done and performed under the Transaction Documents prior to and after the Closing Date. (i) Not to, and to ensure that no affiliate (as defined in Rule 501(b) of the Securities Act) of the Company will, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any “security” (as defined in the Securities Act) that would be integrated with the sale of the Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchaser or to the Subsequent Purchasers of the Notes. (j) For so long as any of the Notes remain outstanding, during any period in which the Company ~~will timely file all reports, documents and amendments to previously filed documents required to be filed by it pursuant~~ is not subject to Section ~~12, 13(a), 13(c), 14~~ 13 or 15(d) of the Exchange Act~~. (h) The Company will apply the net proceeds from the sale~~ , to make available, upon request, to any owner of the Notes in connection with any sale thereof and any prospective Subsequent Purchasers of such Notes from such owner, the manner set forth in the most recent Preliminary Prospectus and the Prospectus. (i) During the period beginning on the date hereof and continuing to and including the Closing Date, neither the Company nor any Guarantor will, 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 and the Guarantees (including, without limitation, with respect to the maturity, currency, interest rate and other material terms thereof). (j) The Company and the Guarantors will pay the required Commission filing fees relating to the Notes and the Guarantees within the time period information required by Rule ~~456(b)(1~~144A(d)(4) of under 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~~Securities Act. (k) If required by Rule 430B(h) of the Rules and Regulations, the Company and the Guarantors 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 Company and the Guarantors will not file any amendment or supplement to such prospectus, which filing is not consented to by the Representatives promptly after reasonable notice thereof (such consent not to be unreasonably withheld or delayed). (l) The Company and the Guarantors will cooperate with the Representatives and with counsel to the Underwriters in connection with the qualification of the Notes and the Guarantees for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Underwriters may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualification and to permit the continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the distribution of the Notes and the Guarantees; provided, however, that in no event will either the Company or the Guarantors be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than for actions or proceedings arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject. (m) Neither the Company nor any of the Guarantors will take, directly or indirectly, any action designed to cause or result in, or which could reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Notes to facilitate the sale or resale of the Notes. (n) The Company will To comply with ~~all agreements set forth in~~ the representation letter of the Company to DTC relating to the ~~acceptance~~ approval of the Notes by DTC for “~~book-~~book entry” transfer. (l) For so long as any of the Notes remain outstanding, to furnish to the Initial Purchaser copies of all reports and other communications (financial or otherwise) furnished by the Company to the Trustee or to the holders of the Notes and, as soon as available, copies of any reports or financial statements furnished to or filed by the Company with the SEC or any national securities exchange on which any class of securities of the Company may be listed unless such reports or financial statements are filed with the SEC and are publicly available. (m) Except in connection with the Exchange Offer or the filing of the Shelf Registration Statement, to not, and to not authorize or permit any person acting on its behalf to, (i) distribute any offering material in connection with the offer and sale of the Notes other than the Pricing Disclosure Package and any amendments and supplements prepared in compliance with this Agreement, or (ii) solicit any offer to buy or offer to sell the Notes by means of any form of general solicitation or general advertising (including, without limitation, as such 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. (n) During the one-year period after the Closing Date (or such shorter period as may be provided for in Rule 144 under the Securities Act, as the same may be in effect from time to time), to not, and to not permit any current or future Subsidiaries of either the Company or any other affiliates (as defined in Rule 144A under the Securities Act) controlled by the Company to, resell any of the Notes which constitute “restricted securities” under Rule 144 that have been reacquired by the Company, any current or future Subsidiaries or any other “affiliates” (as defined in Rule 144A under the Securities Act) controlled by the Company, except pursuant to an effective registration statement under the Securities Act. (o) To pay all stamp, documentary and transfer ~~through~~ taxes and other duties, if any, which may be imposed by the ~~facilities~~ United States or any political subdivision thereof or taxing authority thereof or therein with respect to the issuance of ~~DTC~~the Notes or the sale thereof to the Initial Purchaser. (p) To use its best efforts to complete on or prior to the Closing Date all filings and other similar actions required in connection with the perfection of the security interests as and to the extent contemplated by the Collateral Agreements. (q) To agree with the Initial Purchaser on a transaction fee in connection with the Offering to be paid on the Closing Date, which such fee shall be based on the prevailing market for similar services performed by Initial Purchaser in connection with the Offering.

Appears in 1 contract

Samples: Purchase Agreement (Landrys Restaurants Inc)

Covenants of the Company and the Guarantors. The Company and each ~~of the Guarantors, jointly~~ Guarantor covenants and ~~severally, covenant and agree~~ agrees with each Underwriter that: (a) The Company ~~and the Guarantors~~ (i) will prepare the Prospectus in a form approved by the ~~Representatives~~ Representative and file the Prospectus pursuant to Rule 424(b) of the Rules and Regulations within the time period prescribed by such Rule; (ii) will not file any amendment or supplement to the Registration Statement or the Prospectus or file any document under the Exchange Act before the termination of the offering of the ~~Notes~~ Securities by the Underwriters if such document would be deemed to be incorporated by reference into the Prospectus, which filing is not consented to by the ~~Representatives~~ Representative after reasonable notice thereof (such consent not to be unreasonably withheld or delayed); (iii) will advise the ~~Representatives~~Representative, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement, the most recent Preliminary Prospectus or the Prospectus has been ~~filed~~filed and will furnish the Representative with copies thereof; (iv) will prepare the Final Term Sheet, substantially in the form of Schedule III hereto and approved by the ~~Representatives~~ Representative and file the Final Term Sheet pursuant to Rule 433(d) of the Rules and Regulations within the time period prescribed by such Rule; (v) will advise the ~~Representatives~~ Representative promptly after it receives notice thereof~~, in each case~~, of the issuance by the Commission or any state or other regulatory body of any stop order or any order suspending the effectiveness of the Registration Statement, suspending or preventing the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or suspending the qualification of the ~~Notes or the Guarantees~~ Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceedings for any such purpose or pursuant to Section 8A of the Securities Act, of receipt by the Company ~~or any Guarantor~~ 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 (vi) will use its reasonable best efforts to prevent the issuance of any stop order or other such order or any such notice of objection and, if a 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) IfThe Company will prepare and file with the Commission, ~~at any time prior to completion~~ promptly upon the request of the ~~distribution of the Notes~~Representative, any ~~event occurs~~ amendments or ~~information becomes known that~~supplements to the Registration Statement, ~~in the judgment of the Company or any of the Guarantors or in the opinion of the Representatives or counsel for the Underwriters, should be set forth in~~ the Disclosure Package or the Prospectus ~~so that~~ which, in the reasonable opinion of the Representative, may be necessary or advisable in connection with the offering of the Securities. (c) The Company will furnish to the Representative and to counsel for the Underwriters, without charge, three signed copies of the Registration Statement (including exhibits thereto) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and to furnish to the Underwriters in New York City, without charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 4(f) or 4(g) below, as many copies of the Disclosure Package, the Prospectus and any supplements and amendments thereto or to the Registration Statement as the Representative may reasonably request. (d) Before amending or supplementing the Registration Statement, the Disclosure Package or the Prospectus, to furnish to the Underwriters a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Underwriters reasonably object, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus relating to the Securities required to be filed pursuant to such Rule. (e) The Company and each Guarantor will not to take any action that would result in an Underwriter or the Company or any Guarantor 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 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 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 Disclosure Package conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Disclosure Package to comply with applicable law, forthwith to prepare, the Company will 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 Disclosure Package so that the statements in the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Disclosure Package, as amended or supplemented, ~~does not include~~ will no longer conflict with the Registration Statement, or so that the 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 opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any ~~untrue statement~~ event shall occur or condition exist as a result of ~~material fact~~ which it is necessary to amend or ~~omit to state a material fact necessary~~ supplement the Prospectus in order to make the statements therein, in the light of the circumstances ~~under which they were made, not misleading, or if it is necessary to supplement or amend the Disclosure Package or~~ when the Prospectus in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Representatives and counsel for the Underwriters a reasonable number of copies thereof. (c) The Company and the Guarantors will furnish to each of the Representatives and to counsel for the Underwriters such number of conformed copies of the Registration Statement, as originally filed and each amendment thereto (excluding exhibits), any Preliminary Prospectus, the Final Term Sheet and any other Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements to any of such documents (other than any document filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, any Preliminary Prospectus or the Prospectus), in each case as soon as available and in such quantities as the Representatives may from time to time reasonably request. (d) During the period in which the Prospectus relating to the Notes and the Guarantees (or in lieu ~~thereof,~~ thereof the notice referred to in Rule 173(a) ~~of the Rules and Regulations) is required to be delivered~~ under 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, the Company will file with the Commission and furnish, at its own expense, to the ~~Guarantors~~ Underwriters and to the dealers (whose names and addresses the Representative will ~~comply with all requirements imposed upon it~~ furnish to the Company) to which Securities may have been sold by the ~~Securities Act~~ Representative on behalf of the Underwriters and by to any other dealers upon request, either amendments or supplements to the ~~Rules and Regulations, as from time to time~~ Prospectus so that the statements in force, so far as is necessary to permit the continuance of sales of or dealings in the Notes as contemplated by the provisions of this Agreement and by the Prospectus. If during such period any event occurs as a result of which the Disclosure Package or the Prospectus as ~~then~~ so amended or supplemented ~~would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein~~will not, in the light of the circumstances ~~then existing, not misleading, or if during such period it is necessary to amend the Registration Statement or amend or supplement the Disclosure Package or~~ when the Prospectus (or ~~file any document~~ in lieu thereof the notice referred to ~~comply with~~ in Rule 173(a) under the Securities Act) is delivered to a purchaser, ~~the Company and the Guarantors will promptly notify the Representatives and will, subject to Section 4(a) hereof, amend the Registration Statement, amend~~ be misleading or ~~supplement the Disclosure Package or~~ so that the Prospectus, as amended or supplemented, will comply with applicable law. (h) To endeavor to qualify the ~~case may be,~~ Securities for offer and sale under the securities or ~~file any document (in each case, at the expense~~ Blue Sky laws of ~~the Company and the Guarantors) so as to correct~~ such ~~statement or omission or to effect such compliance, and will furnish without charge to each Underwriter as many written and electronic copies of any such amendment or supplement~~ jurisdictions as the ~~Representatives may from time to time~~ Underwriters shall reasonably request. (ei) ~~As soon as practicable, the Company will~~ To make generally available to ~~its~~ the Company’s security holders and to the Underwriters as soon as practicable an ~~earnings~~ earning statement ~~satisfying~~ covering a period of at least twelve months beginning with the ~~requirements~~ first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and ~~Rule 158 of~~ the Rules and ~~Regulations~~Regulations of the Commission thereunder. (fj) ~~The Company and the Guarantors jointly and severally agree, whether~~ Whether or not the transactions contemplated in this Agreement ~~becomes effective~~ are consummated or this Agreement is ~~terminated~~ terminated, the Company agrees to pay or ~~the sale of the Notes~~ cause to be paid all expenses incident to the ~~Underwriters is consummated~~performance of its obligations under this Agreement, ~~to pay all fees, expenses, costs and charges in connection with~~including: (i) the ~~preparation~~fees, ~~printing, filing, registration, delivery~~ disbursements and ~~shipping~~ expenses of the ~~Registration Statement (including any exhibits thereto), any Preliminary Prospectus, any Issuer Free Writing Prospectus,~~ Company’s counsel and the Prospectus and any amendments or 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 Company’s accountants in connection with the ~~offering, purchase, sale~~ registration and delivery of the ~~Notes;~~ 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 Disclosure Package, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company and amendments and supplements to any of the foregoing, including 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 ~~services~~ cost of printing or producing any Blue Sky or legal investment memorandum in connection with the offer and sale of the ~~Company’s independent registered public accounting firm; (iv) the services of the Company’s~~ Securities under state securities laws and ~~the Guarantors’ counsel; (v)~~ all expenses in connection with the qualification of the ~~Notes~~ Securities for offer and ~~the Guarantees~~ sale under ~~the~~ state securities laws ~~of the several jurisdictions~~ as provided in Section ~~4(l~~4(h) ~~hereof and the preparation~~hereof, ~~printing and distribution of a Blue Sky Memorandum (~~including ~~the related~~ filing fees and ~~reasonable expenses of counsel to the Underwriters); (vi) any rating of the Notes by rating agencies; (vii)~~ the reasonable fees and ~~expenses~~ disbursements of counsel for the Underwriters in connection with ~~its review of~~ such qualification and in connection with the ~~offering’s compliance with FINRA rules~~ Blue Sky or legal investment memorandum, (iv) all filing fees and the filing fees incident to FINRA’s review, if any, and approval of the Underwriters’ participation in the offering and distribution of the Notes (it being understood that the expenses described in clause (v) and this clause (vii) of this Section 4(f) shall not exceed, in the aggregate, $10,000); (viii) the services of the Trustee and any agent of the Trustee (including the reasonable fees and disbursements of counsel ~~for~~ to the ~~Trustee);~~ Underwriters incurred in connection with the review and qualification of the offering of the Financial Industry Regulatory Authority, Inc., which, in the context of this offering, are anticipated to be none, (ixv) the costs and charges of any transfer agent, registrar or depositary, (vi) the costs and expenses of the Company relating to investor presentations on any “road show” ~~or other investor presentations relating to~~ undertaken in connection with the marketing of the offering of the ~~Notes;~~ Securities, including, without limitation, expenses associated with the preparation or dissemination of any electronic roadshow, 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 travel and lodging expenses of the representatives and officers of the Company and any such consultants (except that the cost of any aircraft chartered in connection with the road show shall be paid by the Representative), (vii) the document production charges and expenses associated with printing this Agreement and (xviii) ~~otherwise~~ all other costs and expenses incident to the performance by of the obligations of the Company and the Guarantors ~~of their obligations~~ hereunder for which provision is not otherwise made in this ~~Section 4(f)~~Section. It is understood, however, ~~that,~~ that except as provided in this Section ~~4(f) or Sections~~ and Section 7 entitled “Indemnity and ~~9 hereof,~~ Contribution,” the Underwriters will pay all of their ~~own~~ costs and expenses, including fees and disbursements of their counsel and any advertising expenses connected with any offers they may make. If the sale of the Securities 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 which prevent this Agreement from becoming effective, or by reason of any failure, refusal or inability on the part of the Company or any of its advisors to perform any agreement or fulfill any condition on its part contained herein to be performed, 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 ~~and any advertising expenses incurred~~ in connection with ~~the offering~~ any investigation or preparation made by them in respect of the ~~Notes~~marketing of the Notes or in contemplation of the performance by them of their obligations hereunder. (gk) Until completion of the distribution of the ~~Notes~~Securities, 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. (hl) The Company will apply the net proceeds from the sale of the ~~Notes in the manner~~ Securities as set forth in the most recent Preliminary Prospectus and the Prospectus. (im) ~~During the period beginning on the date hereof and continuing to and including~~ Until 90 days following the Closing Date, ~~neither~~ the Company ~~nor any Guarantor will~~and the Guarantors will not, without the prior written consent of the ~~Representatives~~Representative, 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 and the Guarantees~~ Securities (including, without limitation, with respect to the maturity, currency, interest rate and other material terms ~~thereof~~of the Securities). (jn) The Company ~~and the Guarantors~~ will pay the required Commission filing fees relating to the ~~Notes and the Guarantees~~ Securities 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. (ko) If required by Rule 430B(h) of the Rules and Regulations, the Company ~~and the Guarantors~~ will prepare a prospectus in a form approved by the ~~Representatives~~ Representative 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 Company ~~and the Guarantors~~ will ~~not file any~~ make no further amendment or supplement to such ~~prospectus, which filing is not consented to~~ prospectus that will be disapproved by the ~~Representatives~~ Representative promptly after reasonable notice ~~thereof (such consent not to be unreasonably withheld or delayed)~~thereof. (lp) The Company ~~and the Guarantors~~ will cooperate with the Representatives and with counsel to the Underwriters in connection with the qualification of the Notes and the Guarantees for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Underwriters may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualification and to permit the continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the distribution of the Notes and the Guarantees; provided, however, that in no event will either the Company or the Guarantors be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than for actions or proceedings arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject. (m) Neither the Company nor any of the Guarantors will take, directly or indirectly, any action designed to cause or result in, or ~~which could reasonably be expected to~~ that might cause or result in, ~~the~~ stabilization or manipulation of the price of the ~~Notes~~ Securities to facilitate the sale or resale of the ~~Notes~~Securities. (nq) The Company will comply with all agreements set forth in the representation ~~letter~~ letters of the Company to DTC relating to the acceptance of the Notes for “book-entry” transfer through the facilities of DTC.

Appears in 1 contract

Samples: Underwriting Agreement (Mastec Inc)

Covenants of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, covenant and agree with each Underwriter that: (a) The Company and the Guarantors (i) will prepare the Prospectus in a form approved by the Representatives and file the Prospectus pursuant to Rule 424(b) of the Rules and Regulations within the time period prescribed by such Rule; (ii) will not file any amendment or supplement to the Registration Statement or the Prospectus or file any document under the Exchange Act before the termination of the offering of the Notes by the Underwriters 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 notice thereof (such consent not to be unreasonably withheld or delayed); (iii) will advise the Representatives, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement, the ~~most recent~~ Preliminary Prospectus or the Prospectus has been filed; (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; (v) will advise the Representatives promptly after it receives notice thereof, in each case, of the issuance by the Commission or any state or other regulatory body of any stop order or any order suspending the effectiveness of the Registration Statement, suspending or preventing the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or suspending the qualification of the Notes or the Guarantees for offering or sale in any jurisdiction, of the initiation or threatening of any proceedings for any such purpose or pursuant to Section 8A of the Securities Act, of receipt by the Company or any Guarantor 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 (vi) will use its reasonable best efforts to prevent the issuance of any stop order or other such order or any such notice of objection and, if a 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) If, at any time prior to completion of the distribution of the Notes, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the opinion of the Representatives or counsel for the Underwriters, should be set forth in the Disclosure Package or the Prospectus so that the Disclosure Package or the Prospectus, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Disclosure Package or the Prospectus in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Representatives and counsel for the Underwriters a reasonable number of copies thereof. (c) The Company and the Guarantors will furnish to each of the Representatives and to counsel for the Underwriters such number of conformed copies of the Registration Statement, as originally filed and each amendment thereto (excluding exhibits), any Preliminary Prospectus, the Final Term Sheet and any other Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements to any of such documents (other than any document filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, any Preliminary Prospectus or the Prospectus), in each case as soon as available and in such quantities as the Representatives may from time to time reasonably request. (d) During the period in which the Prospectus relating to the Notes and the Guarantees (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is required to be delivered under the Securities Act, the Company and the Guarantors will comply with all requirements imposed upon it by the Securities Act and by the Rules and Regulations, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Notes as contemplated by the provisions of this Agreement and by the Prospectus. If during such period any event occurs as a result of which the Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or 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 the Securities Act, the Company and the Guarantors will promptly notify the Representatives and will, subject to Section 4(a) hereof, amend the Registration Statement, amend or supplement the Disclosure Package or the Prospectus, as the case may be, or file any document (in each case, at the expense of the Company and the Guarantors) so as to correct such statement or omission or to effect such compliance, and will furnish without charge to each Underwriter as many written and electronic copies of any such amendment or supplement as the Representatives may from time to time reasonably request. (e) As soon as practicable, the Company will make generally available to its security holders and the Underwriters an earnings statement satisfying the requirements of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (f) The Company and the Guarantors jointly and severally agree, whether or not this Agreement becomes effective or 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 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 and the Guarantors’ counsel; (v) the qualification of the Notes and the Guarantees 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 reasonable expenses of counsel to the Underwriters); (vi) any rating of the Notes by rating agencies; (vii) the reasonable fees and expenses of counsel for the Underwriters in connection with its review of the offering’s compliance with FINRA rules and the filing fees incident to FINRA’s review, if any, and approval of the Underwriters’ participation in the offering and distribution of the Notes (it being understood that the expenses described in clause (v) and this clause (vii) of this Section 4(f) shall not exceed, in the aggregate, $10,000); (viii) the services of the Trustee and any agent of the Trustee (including the fees and disbursements of counsel for the Trustee); (ix) any “road show” or other investor presentations relating to the offering of the Notes; and (x) otherwise incident to the performance by the Company and the Guarantors of their obligations hereunder for which provision is not otherwise made in this Section 4(f). It is understood, however, that, except as provided in this Section 4(f) or Sections 7 and 9 hereof, the Underwriters will pay all of their own costs and expenses, including the fees and expenses of counsel to the Underwriters and any advertising expenses incurred in connection with the offering of the Notes. (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 in the manner set forth in the ~~most recent~~ Preliminary Prospectus and the Prospectus. (i) During the period beginning on the date hereof and continuing to and including the Closing Date, neither the Company nor any Guarantor will, 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 and the Guarantees (including, without limitation, with respect to the maturity, currency, interest rate and other material terms thereof). (j) The Company and the Guarantors will pay the required Commission filing fees relating to the Notes and the Guarantees 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) If required by Rule 430B(h) of the Rules and Regulations, the Company and the Guarantors 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 Company and the Guarantors will not file any amendment or supplement to such prospectus, which filing is not consented to by the Representatives promptly after reasonable notice thereof (such consent not to be unreasonably withheld or delayed). (l) The Company and the Guarantors will cooperate with the Representatives and with counsel to the Underwriters in connection with the qualification of the Notes and the Guarantees for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Underwriters may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualification and to permit the continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the distribution of the Notes and the Guarantees; provided, however, that in no event will either the Company or the Guarantors be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than for actions or proceedings arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject. (m) Neither the Company nor any of the Guarantors will take, directly or indirectly, any action designed to cause or result in, or which could reasonably be expected to cause or result in, the 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 letter of the Company to DTC relating to the acceptance of the Notes for “book-entry” transfer through the facilities of DTC.

Appears in 1 contract

Samples: Underwriting Agreement (O Reilly Automotive Inc)

Covenants of the Company and the Guarantors. ~~The Company and~~ In further consideration of the agreements of the Underwriters contained in this Agreement, each of the ~~Guarantors, jointly~~ Company and ~~severally, covenant and agree~~ the Guarantors covenants with each Underwriter ~~that~~as follows: (a) The Company and the Guarantors will (i) ~~will~~ prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus in a form approved by the Representatives ~~and file~~ containing information previously omitted at the ~~Prospectus pursuant to Rule 424(b)~~ time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C under the Act and ~~Regulations within the time period prescribed by such Rule;~~ (ii) ~~will not~~ file on a timely basis all reports and any ~~amendment~~ definitive proxy or ~~supplement~~ information statements required to be filed by the Company with the Commission subsequent to the ~~Registration Statement or~~ date of the Prospectus ~~or file any document under the Exchange Act before~~ and prior to the termination of the offering of the ~~Notes~~ Securities by the ~~Underwriters if such document~~ Underwriters. (b) The Company and the Guarantors will (i) 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 under the Act) required to be filed by the Company or any Guarantor with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to ~~be incorporated by reference into~~ have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule III hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, ~~which filing is not consented to by the Representatives after reasonable notice thereof (such consent not to be unreasonably withheld or delayed);~~ (iii) ~~will advise~~ comply with the ~~Representatives~~requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, ~~promptly after it receives notice thereof~~including the requirements relating to timely filing with the Commission, ~~of the time when any amendment or supplement to the Registration Statement, the most recent Preliminary Prospectus or the Prospectus has been filed;~~ legending and record keeping and (iv) ~~will prepare~~ not take any action that would result in an Underwriter, the ~~Final Term Sheet, substantially in~~ Company or any Guarantor being required to file with the ~~form of Schedule III hereto and approved by the Representatives and file the Final Term Sheet~~ Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. (c) The Company will prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms of the ~~Rules~~ Securities, in form and ~~Regulations within~~ substance satisfactory to the Representatives, and shall file such Final Term Sheet as an Issuer Free Writing Prospectus pursuant to Rule 433 under the Act prior to the close of business two business days after the date hereof; provided that the Company shall provide the Representatives with copies of any such Final Term Sheet a reasonable amount of time ~~period prescribed by~~ prior to such ~~Rule;~~ proposed filing and will not use or file any such document to which the Representatives or counsel to the Underwriters shall reasonably object. (vd) The Company will advise the Representatives promptly ~~after it receives notice thereof~~(A) when any post-effective amendment to the Registration Statement shall have become effective, ~~in each case~~(B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, and (D) of the issuance by the Commission ~~or any state or other regulatory body~~ of any stop ~~order or any~~ order suspending the effectiveness of the Registration ~~Statement,~~ Statement or any order preventing or suspending ~~or preventing~~ the use of any Preliminary Prospectus, ~~the Prospectus or~~ any Issuer Free Writing Prospectus or ~~suspending~~ the ~~qualification~~ Prospectus, or of the ~~Notes or the Guarantees for offering or sale in any jurisdiction, of the initiation or threatening~~ institution of any proceedings for ~~any such~~ that purpose or pursuant to Section 8A of the ~~Securities~~ Act~~, of receipt by the~~ . The Company or any Guarantor 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 (vi) will use its ~~reasonable~~ best efforts to prevent the issuance of any ~~stop order or other~~ such order ~~or any such notice of objection and, if a stop order or other such order is issued or any such notice of objection is received,~~ and to obtain as soon as possible the lifting ~~or withdrawal~~ thereof, if issued. Additionally, each of the Company and the Guarantors agree that it shall (i) pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act, (ii) comply with the provisions of Rules 424(b) and 430B, as applicable, under the Act, including with respect to the timely filing of documents thereunder and (iii) use its reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) were received in a timely manner by the Commission. (be) IfThe Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request. (f) Before amending or supplementing the Registration Statement, the General Disclosure Package or the Prospectus (including by way of a report filed under the Exchange Act and incorporated by reference therein) at any time ~~prior~~ during the Prospectus Delivery Period, the Company shall furnish to the Representatives a copy of each such proposed amendment or supplement and, and neither the Company nor the Guarantors shall file or use any such proposed amendment or supplement to which the Representatives reasonably object. (g) Each of the Company and the Guarantors will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the ~~Notes~~Securities as contemplated in this Agreement and the Prospectus. If during the Prospectus Delivery Period, any event ~~occurs~~ shall occur or ~~information becomes known that~~condition exist as a result of which it is necessary to amend or supplement the Registration Statement, in the ~~judgment of the Company or any of the Guarantors or in the opinion of the Representatives or counsel for the Underwriters, should be set forth in the~~ General Disclosure Package or the Prospectus ~~so that the Disclosure Package or the Prospectus, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary~~ in order to make the statements therein, in the light of the circumstances under which they were ~~made~~made or then prevailing, not misleading, or or, if it is necessary at any time to amend or supplement ~~or amend~~ the Registration Statement, the General Disclosure Package or the Prospectus ~~in order~~ to comply with ~~any~~ applicable law, the Company and the Guarantors ~~will forthwith~~ promptly shall notify the Representatives of any such event or condition and either (i) prepare and file with the Commission an appropriate amendment or supplement ~~or amendment thereto, and will expeditiously furnish~~ to the Representatives and counsel for the Underwriters a reasonable number of copies thereof. (c) The Company and the Guarantors will furnish to each of the Representatives and to counsel for the Underwriters such number of conformed copies of the Registration Statement, ~~as originally filed and each amendment thereto (excluding exhibits), any Preliminary Prospectus,~~ the ~~Final Term Sheet and any other Issuer Free Writing Prospectus,~~ General Disclosure Package or the Prospectus or (ii) prepare and ~~all amendments and supplements to any of such documents (other than any document filed~~ file with the Commission an appropriate filing under the Exchange Act ~~and deemed to~~ which shall be incorporated by reference in the Registration Statement, ~~any Preliminary Prospectus or~~ the ~~Prospectus), in each case as soon as available~~ General Disclosure Package and ~~in such quantities as the Representatives may from time to time reasonably request. (d) During the period in which~~ the Prospectus ~~relating to~~ so that the ~~Notes and the Guarantees (or in lieu thereof~~Registration Statement, the notice referred to in Rule 173(a) of the Rules and Regulations) is required to be delivered under the Securities Act, the Company and the Guarantors will comply with all requirements imposed upon it by the Securities Act and by the Rules and Regulations, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Notes as contemplated by the provisions of this Agreement and by the Prospectus. If during such period any event occurs as a result of which the General Disclosure Package or and the Prospectus as ~~then~~ so amended or supplemented ~~would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein~~will not, in the light of the circumstances under which they were made or then ~~existing~~prevailing, ~~not~~ be misleading, or 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 the Securities Act, the Company and the Guarantors will promptly notify the Representatives and will, subject to Section 4(a) hereof, amend so that the Registration Statement, ~~amend or supplement~~ the General Disclosure Package ~~or the Prospectus, as the case may be, or file any document (in each case, at the expense of the Company~~ and the ~~Guarantors) so as to correct such statement or omission or to effect such compliance, and~~ Prospectus will ~~furnish without charge to each Underwriter as many written and electronic copies of any such amendment or supplement as the Representatives may from time to time reasonably request~~comply with applicable law. (e) As soon as practicable, the Company will make generally available to its security holders and the Underwriters an earnings statement satisfying the requirements of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (fh) The Company shall endeavor to qualify the Securities for offer and ~~the Guarantors jointly and severally agree, whether or not this Agreement becomes effective or 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 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 and the Guarantors’ counsel; (v) the qualification of the Notes and the Guarantees under the securities or Blue Sky laws of ~~the several~~ such jurisdictions as ~~provided~~ you shall reasonably request and to continue such qualifications in Section 4(l) hereof and the preparation, printing and distribution of a Blue Sky Memorandum (including the related fees and reasonable expenses of counsel to the Underwriters); (vi) any rating of the Notes by rating agencies; (vii) the reasonable fees and expenses of counsel effect so long as is required for the Underwriters in connection with its review of the offering’s compliance with FINRA rules and the filing fees incident to FINRA’s review, if any, and approval of the Underwriters’ participation in the offering and distribution of the Notes (it being understood that the expenses described in clause (v) and this clause (vii) of this Section 4(f) shall not exceed, in the aggregate, $10,000); (viii) the services of the Trustee and any agent of the Trustee (including the fees and disbursements of counsel for the Trustee); (ix) any “road show” or other investor presentations relating to the offering of the Notes; and (x) otherwise incident to the performance by the Company and the Guarantors of their obligations hereunder for which provision is not otherwise made in this Section 4(f). It is understood, however, that, except as provided in this Section 4(f) or Sections 7 and 9 hereof, the Underwriters will pay all of their own costs and expenses, including the fees and expenses of counsel to the Underwriters and any advertising expenses incurred in connection with the offering of the Notes. (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~~Securities. (hi) The Company will apply the net proceeds from the sale of the ~~Notes~~ Securities as described in the ~~manner set forth~~ Registration Statement, the General Disclosure Package and the Prospectus under the heading “Use of Proceeds”. (j) The Company shall engage and maintain, at its expense, a registrar and transfer agent for the Class B Common Stock. (k) The Company will reserve and keep available at all times, free of preemptive rights, the full number of Conversion Shares issuable upon conversion of the Securities at such time. (l) Between the date hereof and the Closing Date, the Company will not do or authorize any act or thing that would result in an adjustment of the conversion price. (m) The Company shall make generally available to the Company’s and the Guarantors’ security holders and to the Representatives as soon as practicable an earnings statement of the Company and its subsidiaries that satisfies the provisions of Section 11(a) of the Act and the rules and regulations of the Commission thereunder. (n) Prior to the Closing Date, the Company will furnish the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any draft unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent ~~Preliminary Prospectus~~ financial statements appearing in the Registration Statement, the General Disclosure Package and the Final Prospectus. (io) ~~During the period beginning on the date hereof and continuing to and including the Closing Date, neither the~~ The Company ~~nor any Guarantor will~~will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, ~~issue, sell, offer to sell, grant any option for~~ including the ~~sale~~ filing (or participation in the filing) of ~~or otherwise dispose~~ a registration statement with the Commission in respect of, any debt securities that are substantially similar to the Notes and the Guarantees (including, without limitation, with respect to the maturity, currency, interest rate and other material terms thereof). (j) The Company and the Guarantors will pay the required Commission filing fees relating to the Notes and the Guarantees or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the ~~time period required by Rule 456(b)(1)~~ meaning of Section 16 of the ~~Rules and Regulations without regard~~ Exchange Act, any shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock; or publicly announce an intention to effect any such transaction, until 90 days after the ~~proviso therein and otherwise in accordance with Rules 456(b) and 457(r)~~ date of the ~~Rules and Regulations. (k) If required by Rule 430B(h) of the Rules and Regulations~~Prospectus, the Company and the Guarantors 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 Company and the Guarantors will not file any amendment or supplement to such prospectus, which filing is not consented to by the Representatives promptly after reasonable notice thereof (such consent not to be unreasonably withheld or delayed). (l) The Company and the Guarantors will cooperate with the Representatives and with counsel to the Underwriters in connection with the qualification of the Notes and the Guarantees for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Underwriters may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualification and to permit the continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the distribution of the Notes and the Guarantees; provided, however, that the foregoing shall not apply to (i) issuances of employee stock options and restricted shares pursuant to the terms of any equity incentive plan in effect at the time this Agreement is executed and delivered, (ii) issuances of securities in connection with acquisitions of other entities or assets as long as the recipients of those securities agree to be bound by the restrictions on transfer in respect of those securities equivalent to those set forth in this Section 5(o), (iii) the sale of the Securities under this Agreement or the issuance of the Conversion Shares and (iv) the entry into the transactions contemplated by the Convertible Note Hedge and Warrant Transaction Documentation. If (1) during the last 17 days of the 90-day restricted period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (2) prior to the expiration of the 90-day restricted period, the Company announces that it will release earnings results during the 16-day period following the last day of the 90-day restricted period, then in each case the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the date of the release of the earnings results or the occurrence of material news or a material event relating to the Company, as the case may be, unless the Representatives waive, in writing, such extension. (p) The Company shall furnish to the holders of the Securities as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders’ equity and cash flows of the Company and its consolidated subsidiaries certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the first fiscal quarter ending after the Closing Date), to make available to the holders of the Securities consolidated summary financial information of the Company and its consolidated subsidiaries for such quarter in reasonable detail; provided that the Company shall not be required to furnish materials pursuant to this paragraph that are filed and publicly accessible via the XXXXX database. (q) During the period of two years after the Closing Date the Company will furnish to the Representatives (i) as soon as practicable after the end of each fiscal year, copies of the annual report of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, stockholders’ equity and cash flows for the year then ended and the opinion thereon of the Company’s independent public or certified public accountants (provided that if such information is contained in the reports referenced in clause (ii), this clause (i) will not require provision of any additional documentation); (ii) as soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other report filed by the Company with the Commission, or any securities exchange; and (iii) as soon as available, copies of any report or communication of the Company mailed generally to holders of its capital stock; provided that in no event ~~will either~~ shall the Company be required to furnish materials pursuant to this paragraph that are filed and publicly accessible via the XXXXX database. (r) The Company shall not invest or otherwise use the proceeds received by the Company from its sale of the Securities in such a manner as would require the Company or any of its subsidiaries to register as an investment company under the Guarantors be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than for actions or proceedings arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subjectInvestment Company Act. (ms) ~~Neither the~~ The Company ~~nor any of the Guarantors~~ will not take, directly or indirectly, any action designed to cause or result in, or ~~which could~~ that has constituted or might reasonably be expected to ~~cause~~ constitute, under the Exchange Act or ~~result in~~otherwise, the stabilization or manipulation of the price of any securities of the ~~Notes~~ Company to facilitate the sale or resale of the ~~Notes~~Securities. (nt) The Company will ~~comply~~ cooperate with ~~all agreements set forth in~~ the ~~representation letter of~~ Representatives and use its best efforts to permit the ~~Company~~ Securities to ~~DTC relating to the acceptance of the Notes~~ be eligible for ~~“book-entry” transfer~~ clearance and settlement through ~~the facilities of DTC~~The Depository Trust Company.

Appears in 1 contract

Samples: Underwriting Agreement (Molson Coors Brewing Co)

Covenants of the Company and the Guarantors. ~~The Company and~~ In further consideration of the agreements of the Underwriters contained in this Agreement, each of the ~~Guarantors, jointly~~ Company and ~~severally, covenant and agree~~ the Guarantors covenants with each Underwriter ~~that~~as follows: (a) The Company and the Guarantors will (i) ~~will~~ prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus in a form approved by the Representatives ~~and file~~ containing information previously omitted at the ~~Prospectus pursuant to Rule 424(b)~~ time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C under the Act and ~~Regulations within the time period prescribed by such Rule;~~ (ii) ~~will not~~ file on a timely basis all reports and any ~~amendment~~ definitive proxy or ~~supplement~~ information statements required to be filed by the Company with the Commission subsequent to the ~~Registration Statement or~~ date of the Prospectus ~~or file any document under the Exchange Act before~~ and prior to the termination of the offering of the ~~Notes~~ Securities by the ~~Underwriters if such document~~ Underwriters. (b) The Company and the Guarantors will (i) 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 under the Act) required to be filed by the Company or any Guarantor with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to ~~be incorporated by reference into~~ have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule III hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, ~~which filing is not consented to by the Representatives after reasonable notice thereof (such consent not to be unreasonably withheld or delayed);~~ (iii) ~~will advise~~ comply with the ~~Representatives, promptly after it receives notice thereof,~~ requirements of the ~~time when~~ Rules and Regulations, including Rules 164 and 433 under the Act, applicable to any ~~amendment or supplement~~ Issuer Free Writing Prospectus, including the requirements relating to timely filing with the ~~Registration Statement~~Commission, ~~the most recent Preliminary Prospectus or the Prospectus has been filed;~~ legending and record keeping and (iv) ~~will prepare~~ not take any action that would result in an Underwriter, the ~~Final Term Sheet, substantially in~~ Company or any Guarantor being required to file with the ~~form of Schedule III hereto and approved by the Representatives and file the Final Term Sheet~~ Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. (c) The Company will prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms of the ~~Rules~~ Securities, in form and ~~Regulations within~~ substance satisfactory to the Representatives and attached as Schedule IV hereto, and shall file such Final Term Sheet as an Issuer Free Writing Prospectus pursuant to Rule 433 under the Act prior to the close of business two business days after the date hereof; provided that the Company shall provide the Representatives with copies of any such Final Term Sheet a reasonable amount of time ~~period prescribed by~~ prior to such ~~Rule;~~ proposed filing and will not use or file any such document to which the Representatives or counsel to the Underwriters shall reasonably object. (vd) The Company will advise the Representatives promptly ~~after it receives notice thereof~~(i) when any post-effective amendment to the Registration Statement shall have become effective, ~~in each case~~(ii) of receipt of any comments from the Commission through the Closing Date, (iii) of any request of the Commission for amendment of the Registration Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, and (iv) of the issuance by the Commission ~~or any state or other regulatory body~~ of any stop ~~order or any~~ order suspending the effectiveness of the Registration ~~Statement,~~ Statement or any order preventing or suspending ~~or preventing~~ the use of any Preliminary Prospectus, ~~the Prospectus or~~ any Issuer Free Writing Prospectus or ~~suspending~~ the ~~qualification~~ Prospectus, or of the ~~Notes or the Guarantees for offering or sale in any jurisdiction, of the initiation or threatening~~ institution of any proceedings for ~~any such~~ that purpose or pursuant to Section 8A of the ~~Securities~~ Act~~, of receipt by the~~ . The Company or any Guarantor 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 (vi) will use its reasonable best efforts to prevent the issuance of any ~~stop order or other~~ such order ~~or any such notice of objection and, if a stop order or other such order is issued or any such notice of objection is received,~~ and to obtain as soon as possible the lifting ~~or withdrawal~~ thereof, if issued. Additionally, each of the Company and the Guarantors agree that it shall (A) pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act, (B) comply with the provisions of Rules 424(b) and 430B, as applicable, under the Act, including with respect to the timely filing of documents thereunder and (C) use its reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) were received in a timely manner by the Commission. (be) IfThe Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives, at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request. (f) Before amending or supplementing the Registration Statement, the General Disclosure Package or the Prospectus (including by way of a report filed under the Exchange Act and incorporated by reference therein) at any time ~~prior~~ during the Prospectus Delivery Period, the Company shall furnish to the Representatives a copy of each such proposed amendment or supplement and neither the Company nor the Guarantors shall file or use any such proposed amendment or supplement to which the Representatives reasonably object. (g) Each of the Company and the Guarantors will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the ~~Notes~~Securities as contemplated in this Agreement and the Prospectus. If during the Prospectus Delivery Period, any event ~~occurs~~ shall occur or ~~information becomes known that~~condition exist as a result of which it is necessary to amend or supplement the Registration Statement, in the ~~judgment of the Company or any of the Guarantors or in the opinion of the Representatives or counsel for the Underwriters, should be set forth in the~~ General Disclosure Package or the Prospectus ~~so that the Disclosure Package or the Prospectus, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary~~ in order to make the statements therein, in the light of the circumstances under which they were ~~made~~made or then prevailing, not misleading, or or, if it is necessary at any time to amend or supplement ~~or amend~~ the Registration Statement, the General Disclosure Package or the Prospectus ~~in order~~ to comply with ~~any~~ applicable law, the Company and the Guarantors ~~will forthwith~~ promptly shall notify the Representatives of any such event or condition and either (i) prepare and file with the Commission an appropriate amendment or supplement ~~or amendment thereto, and will expeditiously furnish~~ to the Representatives and counsel for the Underwriters a reasonable number of copies thereof. (c) The Company and the Guarantors will furnish to each of the Representatives and to counsel for the Underwriters such number of conformed copies of the Registration Statement, ~~as originally filed and each amendment thereto (excluding exhibits), any Preliminary Prospectus,~~ the ~~Final Term Sheet and any other Issuer Free Writing Prospectus,~~ General Disclosure Package or the Prospectus or (ii) prepare and ~~all amendments and supplements to any of such documents (other than any document filed~~ file with the Commission an appropriate filing under the Exchange Act ~~and deemed to~~ which shall be incorporated by reference in the Registration Statement, ~~any Preliminary Prospectus or~~ the ~~Prospectus), in each case as soon as available~~ General Disclosure Package and ~~in such quantities as the Representatives may from time to time reasonably request. (d) During the period in which~~ the Prospectus ~~relating to~~ so that the ~~Notes and the Guarantees (or in lieu thereof~~Registration Statement, the notice referred to in Rule 173(a) of the Rules and Regulations) is required to be delivered under the Securities Act, the Company and the Guarantors will comply with all requirements imposed upon it by the Securities Act and by the Rules and Regulations, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Notes as contemplated by the provisions of this Agreement and by the Prospectus. If during such period any event occurs as a result of which the General Disclosure Package or and the Prospectus as ~~then~~ so amended or supplemented ~~would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein~~will not, in the light of the circumstances under which they were made or then ~~existing~~prevailing, ~~not~~ be misleading, or 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 the Securities Act, the Company and the Guarantors will promptly notify the Representatives and will, subject to Section 4(a) hereof, amend so that the Registration Statement, ~~amend or supplement~~ the General Disclosure Package ~~or the Prospectus, as the case may be, or file any document (in each case, at the expense of the Company~~ and the ~~Guarantors) so as to correct such statement or omission or to effect such compliance, and~~ Prospectus will ~~furnish without charge to each Underwriter as many written and electronic copies of any such amendment or supplement as the Representatives may from time to time reasonably request~~comply with applicable law. (eh) ~~As soon as practicable~~The Company, in cooperation with the ~~Company will make generally available~~ Underwriters, shall endeavor to ~~its security holders and the Underwriters an earnings statement satisfying the requirements of Section 11(a) of~~ qualify the Securities ~~Act~~ for offer and ~~Rule 158 of the Rules and Regulations. (f) The Company and the Guarantors jointly and severally agree, whether or not this Agreement becomes effective or 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 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 and the Guarantors’ counsel; (v) the qualification of the Notes and the Guarantees under the securities or Blue Sky laws of ~~the several~~ such jurisdictions as ~~provided~~ you shall reasonably request and to continue such qualifications in Section 4(l) hereof and the preparation, printing and distribution of a Blue Sky Memorandum (including the related fees and reasonable expenses of counsel to the Underwriters); (vi) any rating of the Notes by rating agencies; (vii) the reasonable fees and expenses of counsel effect so long as is required for the Underwriters in connection with its review of the offering’s compliance with FINRA rules and the filing fees incident to FINRA’s review, if any, and approval of the Underwriters’ participation in the offering and distribution of the Notes (it being understood that the expenses described in clause (v) and this clause (vii) of this Section 4(f) shall not exceed, in the aggregate, $10,000); (viii) the services of the Trustee and any agent of the Trustee (including the fees and disbursements of counsel for the Trustee); (ix) any “road show” or other investor presentations relating to the offering of the Notes; and (x) otherwise incident to the performance by the Company and the Guarantors of their obligations hereunder for which provision is not otherwise made in this Section 4(f). It is understood, however, that, except as provided in this Section 4(f) or Sections 7 and 9 hereof, the Underwriters will pay all of their own costs and expenses, including the fees and expenses of counsel to the Underwriters and any advertising expenses incurred in connection with the offering of the Notes. (g) Until completion of the distribution of the ~~Notes~~Securities; provided, however, that the Company ~~will timely~~ shall not be obligated to file ~~all reports, documents and amendments~~ any general consent to ~~previously filed documents required~~ service of process or to ~~be filed by~~ qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it ~~pursuant~~ is not so qualified or to ~~Section 12, 13(a), 13(c), 14 or 15(d)~~ subject itself to taxation in respect of ~~the Exchange Act~~doing business in any jurisdiction in which it is not otherwise so subject. (hi) The Company will apply the net proceeds from the sale of the ~~Notes~~ Securities as described in the ~~manner set forth in~~ Registration Statement, the ~~most recent Preliminary Prospectus~~ General Disclosure Package and the ~~Prospectus~~Prospectus under the heading “Use of Proceeds”. (ij) The Company shall make generally available to the Company’s and the Guarantors’ security holders and to the Representatives as soon as practicable an earnings statement of the Company and its Subsidiaries (which need not be audited) that satisfies the provisions of Section 11(a) of the Act and the rules and regulations of the Commission thereunder. (k) During the period beginning on the date hereof and continuing to and including the Closing Date, ~~neither~~ not to offer, sell, contract to sell or otherwise dispose of any debt securities of the Company ~~nor any Guarantor will~~or warrants to purchase or otherwise acquire debt securities of the Company substantially similar to the Securities (other than (i) the Securities, ~~without~~ (ii) commercial paper issued in the ordinary course of business or (iii) debt securities or warrants to purchase debt securities permitted with 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 and the Guarantees (including, without limitation, with respect to the maturity, currency, interest rate and other material terms thereof). (j) The Company and the Guarantors will pay the required Commission filing fees relating to the Notes and the Guarantees 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) If required by Rule 430B(h) of the Rules and Regulations, the Company and the Guarantors 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 Company and the Guarantors will not file any amendment or supplement to such prospectus, which filing is not consented to by the Representatives promptly after reasonable notice thereof (such consent not to be unreasonably withheld or delayed). (l) ~~The Company and~~ If the ~~Guarantors will cooperate with~~ third anniversary of the ~~Representatives and with counsel~~ initial effective date of the Registration Statement occurs before all the Securities have been sold by the Underwriters, prior to the ~~Underwriters in connection with the qualification of the Notes~~ third anniversary to file a new shelf registration statement and ~~the Guarantees for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Underwriters may designate and will file such consents~~ to ~~service of process or~~ take any other ~~documents~~ action necessary ~~or appropriate in order to effect such qualification and~~ to permit the ~~continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the distribution~~ public offering of the ~~Notes and~~ Securities to continue without interruption; references herein to the ~~Guarantees; provided, however, that in no event will either~~ Registration Statement shall include the ~~Company or~~ new registration statement declared effective by the Guarantors be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than for actions or proceedings arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subjectCommission. (m) ~~Neither~~ For the period of one year following the date of this Agreement, the Company ~~nor~~ shall furnish to the holders of the Securities as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders’ equity and cash flows of the Company and its consolidated Subsidiaries certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the first fiscal quarter ending after the Closing Date), to make available to the holders of the Securities consolidated summary financial information of the Company and its consolidated Subsidiaries for such quarter in reasonable detail; provided that the Company shall not be required to furnish materials pursuant to this paragraph that are filed and publicly accessible via the EXXXX database. (n) The Company shall not invest or otherwise use the proceeds received by the Company from its sale of the Securities in such a manner as would require the Company or any of its subsidiaries to register as an investment company under the ~~Guarantors~~ Investment Company Act. (o) The Company will not take, directly or indirectly, any action designed to cause or result in, or ~~which could~~ that has constituted or might reasonably be expected to ~~cause~~ constitute, under the Exchange Act or ~~result in~~otherwise, the stabilization or manipulation of the price of any securities of the ~~Notes~~ Company to facilitate the sale or resale of the ~~Notes~~Securities. (np) The Company will ~~comply~~ cooperate with ~~all agreements set forth in~~ the ~~representation letter of~~ Representatives and use its reasonable best efforts to permit the Securities to be eligible for clearance and settlement through Clearstream and Euroclear. (q) The Company will use commercially reasonable efforts to ~~DTC relating to~~ list the ~~acceptance of~~ Securities on the ~~Notes for “book-entry” transfer through the facilities of DTC~~NYSE.

Appears in 1 contract

Samples: Underwriting Agreement (Molson Coors Beverage Co)

Covenants of the Company and the Guarantors. ~~The~~ Each of the Company and ~~each of~~ the Guarantors, jointly and severally, ~~covenant and agree with each Underwriter that~~agrees: (a) ~~The Company and the Guarantors~~ To (i) ~~will prepare~~ advise the ~~Prospectus in a form approved~~ Initial Purchaser promptly after obtaining knowledge (and, if requested by the ~~Representatives and file the Prospectus pursuant to Rule 424(b~~Initial Purchaser, confirm such advice in writing) of ~~the Rules and Regulations within the time period prescribed by such Rule;~~ (iiA) will not file any amendment or supplement to the Registration Statement or the Prospectus or file any document under the Exchange Act before the termination of the offering of the Notes by the Underwriters 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 notice thereof (such consent not to be unreasonably withheld or delayed); (iii) will advise the Representatives, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement, the most recent Preliminary Prospectus or the Prospectus has been filed; (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; (v) will advise the Representatives promptly after it receives notice thereof, in each case, of the issuance by ~~the Commission or~~ any state ~~or other regulatory body~~ securities commission of any stop order ~~or any order suspending the effectiveness of the Registration Statement, suspending or preventing the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or~~ suspending the qualification or exemption from qualification of any of the Notes ~~or the Guarantees~~ for ~~offering~~ offer or sale in any jurisdiction, of or the initiation ~~or threatening~~ of any ~~proceedings~~ proceeding for ~~any~~ such purpose by any state securities commission or ~~pursuant to Section 8A of~~ other regulatory authority, or (B) the ~~Securities Act, of receipt by the Company or any Guarantor from the Commission~~ happening of any ~~notice of objection~~ event during the period referred to ~~the use of the Registration Statement or~~ in Section 5(d) that makes 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 (vi) will use its reasonable best efforts to prevent the issuance of any stop order or other such order or any such notice of objection and, if a 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) If, at any time prior to completion of the distribution of the Notes, any event occurs or information becomes known that, in the judgment of the Company or any of the Guarantors or in the opinion of the Representatives or counsel for the Underwriters, should be set forth in the Disclosure Package or the Prospectus so that the Disclosure Package or the Prospectus, as then amended or supplemented, does not include any untrue statement of ~~material fact or omit to state~~ a material fact ~~necessary~~ made in the Final Offering Circular untrue or that requires the making of any additions to or changes in the Final Offering Circular in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) use its commercially reasonable efforts to prevent the issuance of any stop order or ~~if it is necessary to supplement~~ order suspending the qualification or ~~amend~~ exemption from qualification of any of the ~~Disclosure Package~~ Notes under any state securities or ~~the Prospectus in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto~~Blue Sky laws, and ~~will expeditiously furnish~~ (iii) if, at any time, any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of any of the Notes under any such laws, use its commercially reasonable efforts to obtain the ~~Representatives and counsel for~~ withdrawal or lifting of such order at the ~~Underwriters a reasonable number of copies thereof~~earliest practicable time. (cb) ~~The Company and~~ To furnish the ~~Guarantors will furnish to each of the Representatives and to counsel for the Underwriters such number of conformed~~ Initial Purchaser, without charge, as many copies of the ~~Registration Statement~~Final Offering Circular, as originally filed and each amendment thereto (excluding exhibits), any Preliminary Prospectus, the Final Term Sheet and any other Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements to any of such documents (other than any document filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, any Preliminary Prospectus or the Prospectus), in each case as soon as available and in such quantities as the Representatives may from time to time reasonably request. (d) During the period in which the Prospectus relating to the Notes and the Guarantees (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is required to be delivered under the Securities Act, the Company and the Guarantors will comply with all requirements imposed upon it by the Securities Act and by the Rules and Regulations, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Notes as contemplated by the provisions of this Agreement and by the Prospectus. If during such period any event occurs as a result of which the Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or 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 the Securities Act, the Company and the Guarantors will promptly notify the Representatives and will, subject to Section 4(a) hereof, amend the Registration Statement, amend or supplement the Disclosure Package or the Prospectus, as the case may be, or file any document (in each case, at the expense of the Company and the Guarantors) so as to correct such statement or omission or to effect such compliance, and will furnish without charge to each Underwriter as many written and electronic copies of any such amendment or supplement as the Representatives may from time to time reasonably request. (e) As soon as practicable, the Company will make generally available to its security holders and the Underwriters an earnings statement satisfying the requirements of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (f) The Company and the Guarantors jointly and severally agree, whether or not this Agreement becomes effective or 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 supplements thereto~~; (ii)~~ , as the ~~printing~~Initial Purchaser may reasonably request. The Company hereby consents to the use of the Preliminary Offering Circular and the Final Offering Circular, ~~producing, copying and delivering this Agreement, the Indenture, closing documents (including any compilations thereof)~~ and any ~~other agreements~~amendments and supplements thereto, ~~memoranda, correspondence and other documents printed and delivered~~ by the Initial Purchaser in connection with ~~the offering, purchase, sale and delivery of the Notes;~~ Exempt Resales. (~~iii~~c) the services of the Company’s independent registered public accounting firm; (iv) the services of the Company’s and the Guarantors’ counsel; (v) the qualification of the Notes and the Guarantees under the securities laws of the several jurisdictions Except as provided in Section 4(l) hereof and the preparation, printing and distribution of a Blue Sky Memorandum (including the related fees and reasonable expenses of counsel to the Underwriters); (vi) any rating of the Notes by rating agencies; (vii) the reasonable fees and expenses of counsel for the Underwriters in connection with its review of the offering’s compliance with FINRA rules and the filing fees incident to FINRA’s review, if any, and approval of the Underwriters’ participation in the offering and distribution of the Notes (it being understood that the expenses described in clause (v) and this clause (vii) of this Section 4(f) shall not exceed, in the aggregate, $10,000); (viii) the services of the Trustee and any agent of the Trustee (including the fees and disbursements of counsel for the Trustee); (ix) any “road show” or other investor presentations relating to the offering of the Notes; and (x) otherwise incident to the performance by the Company and the Guarantors of their obligations hereunder for which provision is not otherwise made in this Section 4(f). It is understood, however, that, except as provided in this Section 4(f) or Sections 7 and 9 hereof, the Underwriters will pay all of their own costs and expenses, including the fees and expenses of counsel to the Underwriters and any advertising expenses incurred in connection with the offering of the Notes. (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 in the manner set forth in Section 5(d), not to amend or supplement the ~~most recent Preliminary Prospectus and the Prospectus. (i) During the period beginning on the date hereof and continuing~~ Offering Circular prior to ~~and including~~ the Closing Date, ~~neither~~ or at any time prior to the ~~Company nor any Guarantor will~~completion of the resale by the Initial Purchaser of all the Notes purchased by the Initial Purchaser, ~~without~~ unless the ~~prior~~ Initial Purchaser shall previously have been advised thereof and shall have provided its 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 and the Guarantees thereto (including, without limitation, with respect to the maturity, currency, interest rate and other material terms thereof). (j) The Company and the Guarantors will pay the required Commission filing fees relating to the Notes and the Guarantees 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) If required by Rule 430B(h) of the Rules and Regulations, the Company and the Guarantors 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 which consent shall not later than may be required by such Rule; and the Company and the Guarantors will not file any amendment or supplement to such prospectus, which filing is not consented to by the Representatives promptly after reasonable notice thereof (such consent not to be unreasonably withheld or ~~delayed~~delayed and shall be provided within three business days from the date on which it was so advised). (l) The Company and the Guarantors will cooperate with the Representatives and with counsel to the Underwriters in connection with the qualification of the Notes and the Guarantees for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Underwriters may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualification and to permit the continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the distribution of the Notes and the Guarantees; provided, however, that in no event will either the Company or the Guarantors be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than for actions or proceedings arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject. (m) Neither the Company nor any of the Guarantors will take, directly or indirectly, any action designed to cause or result in, or which could reasonably be expected to cause or result in, the 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 letter of the Company to DTC relating to the acceptance of the Notes for “book-entry” transfer through the facilities of DTC.

Appears in 1 contract

Samples: Purchase Agreement (Edgen Corp)

Covenants of the Company and the Guarantors. ~~The~~ Each of the Company and ~~each of~~ the Guarantors, jointly and ~~severally, covenant~~ severally covenants and ~~agree~~ agrees with ~~each Underwriter~~ the Initial Purchaser that: (a) The Company and the Guarantors (i) will prepare the Prospectus in a form approved by the Representatives and file the Prospectus pursuant to Rule 424(b) of the Rules and Regulations within the time period prescribed by such Rule; (ii) will not ~~file~~ amend or supplement the Final Memorandum or any amendment or supplement thereto unless the Initial Purchaser shall previously have been advised and furnished a copy of such amendment or supplement for a reasonable period of time prior to the ~~Registration Statement~~ proposed amendment or supplement and as to which the Prospectus or file any document under the Exchange Act before the termination of the offering of the Notes by the Underwriters if such document would be deemed to be incorporated by reference into the ProspectusInitial Purchaser shall have consented, ~~which filing is not consented to by the Representatives after reasonable notice thereof (~~such consent not to be unreasonably ~~withheld or delayed); (iii)~~ withheld. The Company and the Guarantors will ~~advise~~ promptly, upon the ~~Representatives, promptly after it receives notice thereof,~~ reasonable request of the ~~time when~~ Initial Purchaser or counsel for the Initial Purchaser, make any ~~amendment~~ amendments or ~~supplement~~ supplements to the ~~Registration Statement, the most recent~~ Preliminary ~~Prospectus~~ Memorandum or the ~~Prospectus has been filed; (iv) will prepare~~ Final Memorandum that may be necessary or advisable in connection with 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; (v) will advise the Representatives promptly after it receives notice thereof, in each case, of the issuance by the Commission or any state or other regulatory body of any stop order or any order suspending the effectiveness of the Registration Statement, suspending or preventing the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or suspending the qualification resale of the Notes or the ~~Guarantees for offering or sale~~ Appreciation Notes by the Initial Purchaser. (b) The Company and the Guarantors will cooperate with the Initial Purchaser in ~~any jurisdiction, of the initiation or threatening of any proceedings~~ arranging for any ~~such purpose or pursuant to Section 8A~~ necessary qualification of the Securities ~~Act~~for offering and sale under the securities or "Blue Sky" laws of such jurisdictions as the Initial Purchaser may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securities by the Initial Purchaser; provided, however, that in connection therewith, none of ~~receipt by~~ the Company or any Guarantor ~~from the Commission~~ shall be required to qualify as a foreign corporation or to execute a general consent to service of process in any ~~notice~~ jurisdiction or subject itself to taxation in excess 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 (vi) will use its reasonable best efforts to prevent the issuance of any stop order or other such order or a nominal dollar amount in any such ~~notice of objection and, if a stop order or other such order~~ jurisdiction where it is ~~issued or any such notice of objection is received, to obtain as soon as possible the lifting or withdrawal thereof~~not then so subject. (bc) If, at any time prior to the earlier of (i) completion of the ~~distribution~~ initial resale by the Initial Purchaser of the ~~Notes,~~ Securities or (ii) two years from the date hereof any event occurs or information becomes known ~~that~~as a result of which the Final Memorandum as then amended or supplemented would, in the judgment of the Company or any ~~of the Guarantors~~ Guarantor or in the reasonable opinion of counsel to the Representatives or counsel for the Underwriters, should be set forth in the Disclosure Package or the Prospectus so that the Disclosure Package or the Prospectus, as then amended or supplemented, does not Initial Purchaser include any untrue statement of a material ~~fact~~ fact, or omit to state a material fact necessary ~~in order~~ to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary ~~to supplement or amend the Disclosure Package or the Prospectus in order to comply with~~ at any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Representatives and counsel for the Underwriters a reasonable number of copies thereof. (c) The Company and the Guarantors will furnish to each of the Representatives and to counsel for the Underwriters such number of conformed copies of the Registration Statement, as originally filed and each amendment thereto (excluding exhibits), any Preliminary Prospectus, the Final Term Sheet and any other Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements to any of such documents (other than any document filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, any Preliminary Prospectus or the Prospectus), in each case as soon as available and in such quantities as the Representatives may from time to time reasonably request. (d) During the period in which the Prospectus relating to the Notes and the Guarantees (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is required to be delivered under the Securities Act, the Company and the Guarantors will comply with all requirements imposed upon it by the Securities Act and by the Rules and Regulations, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Notes as contemplated by the provisions of this Agreement and by the Prospectus. If during such period any event occurs as a result of which the Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or 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~~ Final Memorandum to comply with ~~the Securities Act~~applicable law, the Company and the Guarantors will promptly notify the ~~Representatives~~ Initial Purchaser thereof and ~~will, subject to Section 4(a) hereof, amend the Registration Statement, amend or supplement the Disclosure Package or the Prospectus, as the case may be, or file any document (in each case~~will prepare, at the expense of the Company and the Guarantors~~) so as~~ , an amendment or supplement to ~~correct~~ the Final Memorandum that corrects such statement or omission or ~~to effect~~ effects such compliance. (d) The Company and the Guarantors will, without charge, provide to the Initial Purchaser and ~~will furnish without charge~~ to ~~each Underwriter~~ counsel for the Initial Purchaser as many ~~written and electronic~~ copies of the Preliminary Memorandum and the Final Memorandum or any ~~such~~ amendment or supplement thereto as the ~~Representatives~~ Initial Purchaser may ~~from time to time~~ reasonably request. (e) As soon as practicable, the Company will make generally available to its security holders and the Underwriters an earnings statement satisfying the requirements of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (f) The Company and the Guarantors jointly and severally agree, whether or not this Agreement becomes effective or 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 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 and the Guarantors’ counsel; (v) the qualification of the Notes and the Guarantees 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 reasonable expenses of counsel to the Underwriters); (vi) any rating of the Notes by rating agencies; (vii) the reasonable fees and expenses of counsel for the Underwriters in connection with its review of the offering’s compliance with FINRA rules and the filing fees incident to FINRA’s review, if any, and approval of the Underwriters’ participation in the offering and distribution of the Notes (it being understood that the expenses described in clause (v) and this clause (vii) of this Section 4(f) shall not exceed, in the aggregate, $10,000); (viii) the services of the Trustee and any agent of the Trustee (including the fees and disbursements of counsel for the Trustee); (ix) any “road show” or other investor presentations relating to the offering of the Notes; and (x) otherwise incident to the performance by the Company and the Guarantors of their obligations hereunder for which provision is not otherwise made in this Section 4(f). It is understood, however, that, except as provided in this Section 4(f) or Sections 7 and 9 hereof, the Underwriters will pay all of their own costs and expenses, including the fees and expenses of counsel to the Underwriters and any advertising expenses incurred in connection with the offering of the Notes. (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 or the Appreciation Notes as set forth under "Use of Proceeds" in the ~~manner set forth in~~ Final Memorandum. (f) The Company and the Guarantors will furnish to the Initial Purchaser copies of all reports and other communications (financial or otherwise) furnished by the Company to the Trustee, the holders of the Notes, the Unit Agent, holders of the Units, the Appreciation Notes Trustee and the holders of Appreciation Notes and, as soon as available, copies of any reports or financial statements furnished to or filed by the Company or any Guarantors with the Commission or any national securities exchange on which any class of securities of the Company may be listed. (g) Prior to the Closing Date, the Company will furnish to the Initial Purchaser, as soon as they have been prepared, a copy of any unaudited interim financial statements of the Company and the Guarantors for any period subsequent to the period covered by the most recent ~~Preliminary Prospectus and~~ financial statements appearing in the ~~Prospectus~~Final Memorandum. (h) None of the Company or the Guarantors or any of their Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Act) which could be integrated with the sale of the Notes or the Appreciation Notes in a manner which would require the registration under the Act of the Securities. (i) None of the Company or the Guarantors will engage in any form of "general solicitation" or "general advertising" (as those terms are used in Regulation D under the Act) in connection with the offering of the Units or in any manner involving a public offering of the Units within the meaning of Section 4(2) of the Act. (j) None of the Company, the Guarantors or their Affiliates nor any person acting on its or their behalf will engage, in any directed selling efforts (as that term is defined in Regulation S under the Act) with respect to the Units, and will comply, and will have its Affiliates and each person acting on its or their behalf (other than the Initial Purchaser and its Affiliates) comply, with the offering restrictions requirements of Regulation S under the Act. (k) For so long as any of the Securities remain outstanding, the Company and the Guarantors will make available, upon request, to any seller of such Securities the information specified in Rule 144A(d)(4) under the Act, unless the Company and the Guarantors are then subject to Section 13 or 15(d) of the Exchange Act or the Securities may be resold pursuant to Rule 144(k) under the Act. (l) For a period of 180 days from the date of the Final Memorandum, neither the Company nor any Guarantor will offer for sale, sell, contract to sell or otherwise dispose of, directly or indirectly, or file a registration statement for, or announce any offer, sale, contract for sale of or other disposition of any debt securities issued or guaranteed by the Company or any of the Guarantors (other than the Notes or the Exchange Notes or the Private Exchange Notes or the Appreciation Notes or the Appreciation Exchange Notes) without the prior written consent of the Initial Purchaser. (m) During the period ~~beginning on~~ from the ~~date hereof and continuing to and including~~ Closing Date until two years after the Closing Date, without the prior written consent of the Initial Purchaser, neither the Company nor any Guarantor will, or permit any of their affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Securities that have been reacquired by them, except for Securities purchased by the Company or any Guarantor or any of their affiliates and resold in a transaction registered under the Securities Act. (n) In connection with the offering of the Securities, until the Initial Purchaser shall have notified the Company of the completion of the resale of the Notes and the Appreciation Notes, the Company and the Guarantors will not, and will cause their affiliated purchasers (as defined under the Exchange Act) not to, either alone or with one or more other persons (i), bid for or purchase, for any account in which it or any of its affiliated purchasers has a beneficial interest, any Securities, or attempt to induce any person to purchase any Securities and (ii) make bids or purchase for the purpose of creating actual, or apparent, active trading in or of raising the price of the Securities. (o) The Company and the Guarantors will not take any action prior to the execution and delivery of the Indenture which, if taken after such execution and delivery, would have violated any of the covenants contained in the Indenture; (p) The Company and the Guarantors will not take any action prior to the Closing Date which would require the Final Memorandum to be amended or supplemented pursuant to Section 5(c). (q) Prior to the Closing Date, the Company and the Guarantors will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company or the Guarantors, its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Company and of which the Initial Purchaser is notified), without the prior written consent of the ~~Representatives~~Initial Purchaser, ~~directly or indirectly~~unless in the judgment of the Company and its counsel, ~~issue, sell, offer to sell, grant any option for the sale of or otherwise dispose of, any debt securities that are substantially similar~~ after notification to the ~~Notes and the Guarantees (including~~Initial Purchaser, ~~without limitation, with respect to the maturity, currency, interest rate and other material terms thereof)~~such press release or communication is required by law. (j) The Company and the Guarantors will pay the required Commission filing fees relating to the Notes and the Guarantees 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) If required by Rule 430B(h) of the Rules and Regulations, the Company and the Guarantors 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 Company and the Guarantors will not file any amendment or supplement to such prospectus, which filing is not consented to by the Representatives promptly after reasonable notice thereof (such consent not to be unreasonably withheld or delayed). (l) The Company and the Guarantors will cooperate with the Representatives and with counsel to the Underwriters in connection with the qualification of the Notes and the Guarantees for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Underwriters may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualification and to permit the continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the distribution of the Notes and the Guarantees; provided, however, that in no event will either the Company or the Guarantors be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than for actions or proceedings arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject. (m) Neither the Company nor any of the Guarantors will take, directly or indirectly, any action designed to cause or result in, or which could reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Notes to facilitate the sale or resale of the Notes. (nr) The Company will ~~comply~~ use its best efforts to (i) permit the Units, Notes and Appreciation Notes to be designated PORTAL securities in accordance with ~~all agreements set forth~~ the rules and regulations adopted by the NASD relating to trading in the ~~representation letter~~ Private Offerings, Resales and Trading through Automated Linkages market (the "Portal Market") and (ii) permit the Units, Notes and Appreciation Notes to be eligible for clearance and settlement through the Depository Trust Company. (s) The Company shall, immediately upon receipt of the ~~Company~~ proceeds from the Offering, pay, or cause to ~~DTC relating to the acceptance~~ be paid, all outstanding indebtedness, including all indebtedness of the ~~Notes for “book-entry” transfer through~~ Guarantors, owed to AMRESCO Funding Corporation and Xxxxxxx Xxxxx Credit Partners L.P., including indebtedness under the ~~facilities of DTC~~Credit Agreement and upon such payment the Company shall then cause the lien securing such indebtedness to be released. (t) The Company shall use its best efforts to perform the transactions contemplated by the Offering Memorandum.

Appears in 1 contract

Samples: Purchase Agreement (Central Michigan Distribution Co Lp)

Covenants of the Company and the Guarantors. ~~The Company and~~ In further consideration of the agreements of the Underwriters contained in this Agreement, each of the ~~Guarantors, jointly~~ Company and ~~severally, covenant and agree~~ the Guarantors covenants with each Underwriter ~~that~~as follows: (a) The Company and the Guarantors will (i) ~~will~~ prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus in a form approved by the Representatives ~~and file~~ containing information previously omitted at the ~~Prospectus pursuant to Rule 424(b)~~ time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C under the Act and ~~Regulations within the time period prescribed by such Rule;~~ (ii) ~~will not~~ file on a timely basis all reports and any ~~amendment~~ definitive proxy or ~~supplement~~ information statements required to be filed by the Company with the Commission subsequent to the ~~Registration Statement or~~ date of the Prospectus ~~or file any document under the Exchange Act before~~ and prior to the termination of the offering of the ~~Notes~~ Securities by the ~~Underwriters if such document~~ Underwriters. (b) The Company and the Guarantors will (i) 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 under the Act) required to be filed by the Company or any Guarantor with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to ~~be incorporated by reference into~~ have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule III hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, ~~which filing is not consented to by the Representatives after reasonable notice thereof (such consent not to be unreasonably withheld or delayed);~~ (iii) ~~will advise~~ comply with the ~~Representatives, promptly after it receives notice thereof,~~ requirements of the ~~time when~~ Rules and Regulations, including Rules 164 and 433 under the Act, applicable to any ~~amendment or supplement~~ Issuer Free Writing Prospectus, including the requirements relating to timely filing with the ~~Registration Statement~~Commission, ~~the most recent Preliminary Prospectus or the Prospectus has been filed;~~ legending and record keeping and (iv) ~~will prepare~~ not take any action that would result in an Underwriter, the ~~Final Term Sheet, substantially in~~ Company or any Guarantor being required to file with the ~~form of Schedule III hereto and approved by the Representatives and file the Final Term Sheet~~ Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. (c) The Company will prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms of the ~~Rules~~ Securities, in form and ~~Regulations within~~ substance satisfactory to the Representatives and attached as Schedule IV hereto, and shall file such Final Term Sheet as an Issuer Free Writing Prospectus pursuant to Rule 433 under the Act prior to the close of business two business days after the date hereof; provided that the Company shall provide the Representatives with copies of any such Final Term Sheet a reasonable amount of time ~~period prescribed by~~ prior to such ~~Rule;~~ proposed filing and will not use or file any such document to which the Representatives or counsel to the Underwriters shall reasonably object. (vd) The Company will advise the Representatives promptly ~~after it receives notice thereof~~(i) when any post-effective amendment to the Registration Statement shall have become effective, ~~in each case~~(ii) of receipt of any comments from the Commission through the Closing Date, (iii) of any request of the Commission for amendment of the Registration Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, and (iv) of the issuance by the Commission ~~or any state or other regulatory body~~ of any stop ~~order or any~~ order suspending the effectiveness of the Registration ~~Statement,~~ Statement or any order preventing or suspending ~~or preventing~~ the use of any Preliminary Prospectus, ~~the Prospectus or~~ any Issuer Free Writing Prospectus or ~~suspending~~ the ~~qualification~~ Prospectus, or of the ~~Notes or the Guarantees for offering or sale in any jurisdiction, of the initiation or threatening~~ institution of any proceedings for ~~any such~~ that purpose or pursuant to Section 8A of the ~~Securities~~ Act~~, of receipt by the~~ . The Company or any Guarantor 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 (vi) will use its reasonable best efforts to prevent the issuance of any ~~stop order or other~~ such order ~~or any such notice of objection and, if a stop order or other such order is issued or any such notice of objection is received,~~ and to obtain as soon as possible the lifting ~~or withdrawal~~ thereof, if issued. Additionally, each of the Company and the Guarantors agree that it shall (A) pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act, (B) comply with the provisions of Rules 424(b) and 430B, as applicable, under the Act, including with respect to the timely filing of documents thereunder and (C) use its reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) were received in a timely manner by the Commission. (be) IfThe Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives, at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request. (f) Before amending or supplementing the Registration Statement, the General Disclosure Package or the Prospectus (including by way of a report filed under the Exchange Act and incorporated by reference therein) at any time ~~prior~~ during the Prospectus Delivery Period, the Company shall furnish to the Representatives a copy of each such proposed amendment or supplement and neither the Company nor the Guarantors shall file or use any such proposed amendment or supplement to which the Representatives reasonably object. (g) Each of the Company and the Guarantors will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the ~~Notes~~Securities as contemplated in this Agreement and the Prospectus. If during the Prospectus Delivery Period, any event ~~occurs~~ shall occur or ~~information becomes known that~~condition exist as a result of which it is necessary to amend or supplement the Registration Statement, in the ~~judgment of the Company or any of the Guarantors or in the opinion of the Representatives or counsel for the Underwriters, should be set forth in the~~ General Disclosure Package or the Prospectus ~~so that the Disclosure Package or the Prospectus, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary~~ in order to make the statements therein, in the light of the circumstances under which they were ~~made~~made or then prevailing, not misleading, or or, if it is necessary at any time to amend or supplement ~~or amend~~ the Registration Statement, the General Disclosure Package or the Prospectus ~~in order~~ to comply with ~~any~~ applicable law, the Company and the Guarantors ~~will forthwith~~ promptly shall notify the Representatives of any such event or condition and either (i) prepare and file with the Commission an appropriate amendment or supplement ~~or amendment thereto, and will expeditiously furnish~~ to the Representatives and counsel for the Underwriters a reasonable number of copies thereof. (c) The Company and the Guarantors will furnish to each of the Representatives and to counsel for the Underwriters such number of conformed copies of the Registration Statement, ~~as originally filed and each amendment thereto (excluding exhibits), any Preliminary Prospectus,~~ the ~~Final Term Sheet and any other Issuer Free Writing Prospectus,~~ General Disclosure Package or the Prospectus or (ii) prepare and ~~all amendments and supplements to any of such documents (other than any document filed~~ file with the Commission an appropriate filing under the Exchange Act ~~and deemed to~~ which shall be incorporated by reference in the Registration Statement, ~~any Preliminary Prospectus or~~ the ~~Prospectus), in each case as soon as available~~ General Disclosure Package and ~~in such quantities as the Representatives may from time to time reasonably request. (d) During the period in which~~ the Prospectus ~~relating to~~ so that the ~~Notes and the Guarantees (or in lieu thereof~~Registration Statement, the notice referred to in Rule 173(a) of the Rules and Regulations) is required to be delivered under the Securities Act, the Company and the Guarantors will comply with all requirements imposed upon it by the Securities Act and by the Rules and Regulations, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Notes as contemplated by the provisions of this Agreement and by the Prospectus. If during such period any event occurs as a result of which the General Disclosure Package or and the Prospectus as ~~then~~ so amended or supplemented ~~would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein~~will not, in the light of the circumstances under which they were made or then ~~existing~~prevailing, ~~not~~ be misleading, or 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 the Securities Act, the Company and the Guarantors will promptly notify the Representatives and will, subject to Section 4(a) hereof, amend so that the Registration Statement, ~~amend or supplement~~ the General Disclosure Package ~~or the Prospectus, as the case may be, or file any document (in each case, at the expense of the Company~~ and the ~~Guarantors) so as to correct such statement or omission or to effect such compliance, and~~ Prospectus will ~~furnish without charge to each Underwriter as many written and electronic copies of any such amendment or supplement as the Representatives may from time to time reasonably request~~comply with applicable law. (eh) ~~As soon as practicable~~The Company, in cooperation with the ~~Company will make generally available~~ Underwriters, shall endeavor to ~~its security holders and the Underwriters an earnings statement satisfying the requirements of Section 11(a) of~~ qualify the Securities ~~Act~~ for offer and ~~Rule 158 of the Rules and Regulations. (f) The Company and the Guarantors jointly and severally agree, whether or not this Agreement becomes effective or 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 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 and the Guarantors’ counsel; (v) the qualification of the Notes and the Guarantees under the securities or Blue Sky laws of ~~the several~~ such jurisdictions as ~~provided~~ you shall reasonably request and to continue such qualifications in Section 4(l) hereof and the preparation, printing and distribution of a Blue Sky Memorandum (including the related fees and reasonable expenses of counsel to the Underwriters); (vi) any rating of the Notes by rating agencies; (vii) the reasonable fees and expenses of counsel effect so long as is required for the Underwriters in connection with its review of the offering’s compliance with FINRA rules and the filing fees incident to FINRA’s review, if any, and approval of the Underwriters’ participation in the offering and distribution of the Notes (it being understood that the expenses described in clause (v) and this clause (vii) of this Section 4(f) shall not exceed, in the aggregate, $10,000); (viii) the services of the Trustee and any agent of the Trustee (including the fees and disbursements of counsel for the Trustee); (ix) any “road show” or other investor presentations relating to the offering of the Notes; and (x) otherwise incident to the performance by the Company and the Guarantors of their obligations hereunder for which provision is not otherwise made in this Section 4(f). It is understood, however, that, except as provided in this Section 4(f) or Sections 7 and 9 hereof, the Underwriters will pay all of their own costs and expenses, including the fees and expenses of counsel to the Underwriters and any advertising expenses incurred in connection with the offering of the Notes. (g) Until completion of the distribution of the ~~Notes~~Securities; provided, however, that the Company ~~will timely~~ shall not be obligated to file ~~all reports, documents and amendments~~ any general consent to ~~previously filed documents required~~ service of process or to ~~be filed by~~ qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it ~~pursuant~~ is not so qualified or to ~~Section 12, 13(a), 13(c), 14 or 15(d)~~ subject itself to taxation in respect of ~~the Exchange Act~~doing business in any jurisdiction in which it is not otherwise so subject. (hi) The Company will apply the net proceeds from the sale of the ~~Notes~~ Securities as described in the ~~manner set forth in~~ Registration Statement, the ~~most recent Preliminary Prospectus~~ General Disclosure Package and the ~~Prospectus~~Prospectus under the heading “Use of Proceeds”. (ij) The Company shall make generally available to the Company’s and the Guarantors’ security holders and to the Representatives as soon as practicable an earnings statement of the Company and its Subsidiaries (which need not be audited) that satisfies the provisions of Section 11(a) of the Act and the rules and regulations of the Commission thereunder. (k) During the period beginning on the date hereof and continuing to and including the Closing Date, ~~neither~~ not to offer, sell, contract to sell or otherwise dispose of any debt securities of the Company ~~nor any Guarantor will~~or warrants to purchase or otherwise acquire debt securities of the Company substantially similar to the Securities (other than (i) the Securities, ~~without~~ (ii) the U.S. dollar-denominated notes to be issued by the Company and the Canadian dollar-denominated notes to be issued by Molson Coors Brewing International LP, as described in the General Disclosure Package, (iii) commercial paper issued in the ordinary course of business or (iv) debt securities or warrants to purchase debt securities permitted with 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 and the Guarantees (including, without limitation, with respect to the maturity, currency, interest rate and other material terms thereof). (j) The Company and the Guarantors will pay the required Commission filing fees relating to the Notes and the Guarantees 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) If required by Rule 430B(h) of the Rules and Regulations, the Company and the Guarantors 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 Company and the Guarantors will not file any amendment or supplement to such prospectus, which filing is not consented to by the Representatives promptly after reasonable notice thereof (such consent not to be unreasonably withheld or delayed). (l) ~~The Company and~~ If the ~~Guarantors will cooperate with~~ third anniversary of the ~~Representatives and with counsel~~ initial effective date of the Registration Statement occurs before all the Securities have been sold by the Underwriters, prior to the ~~Underwriters in connection with the qualification of the Notes~~ third anniversary to file a new shelf registration statement and ~~the Guarantees for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Underwriters may designate and will file such consents~~ to ~~service of process or~~ take any other ~~documents~~ action necessary ~~or appropriate in order to effect such qualification and~~ to permit the ~~continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the distribution~~ public offering of the ~~Notes and~~ Securities to continue without interruption; references herein to the ~~Guarantees; provided, however, that in no event will either~~ Registration Statement shall include the ~~Company or~~ new registration statement declared effective by the Guarantors be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than for actions or proceedings arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subjectCommission. (m) ~~Neither~~ For the period of one year following the date of this Agreement, the Company ~~nor~~ shall furnish to the holders of the Securities as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders’ equity and cash flows of the Company and its consolidated Subsidiaries certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the first fiscal quarter ending after the Closing Date), to make available to the holders of the Securities consolidated summary financial information of the Company and its consolidated Subsidiaries for such quarter in reasonable detail; provided that the Company shall not be required to furnish materials pursuant to this paragraph that are filed and publicly accessible via the XXXXX database. (n) The Company shall not invest or otherwise use the proceeds received by the Company from its sale of the Securities in such a manner as would require the Company or any of its subsidiaries to register as an investment company under the ~~Guarantors~~ Investment Company Act. (o) The Company will not take, directly or indirectly, any action designed to cause or result in, or ~~which could~~ that has constituted or might reasonably be expected to ~~cause~~ constitute, under the Exchange Act or ~~result in~~otherwise, the stabilization or manipulation of the price of any securities of the ~~Notes~~ Company to facilitate the sale or resale of the ~~Notes~~Securities. (np) The Company will ~~comply~~ cooperate with ~~all agreements set forth in~~ the ~~representation letter of~~ Representatives and use its reasonable best efforts to permit the Securities to be eligible for clearance and settlement through Clearstream and Euroclear. (q) The Company will use commercially reasonable efforts to ~~DTC relating to~~ list the ~~acceptance of~~ Securities on the ~~Notes for “book-entry” transfer through the facilities of DTC~~NYSE.

Appears in 1 contract

Samples: Underwriting Agreement (Molson Coors Brewing Co)

Covenants of the Company and the Guarantors. ~~The Company and each of the Guarantors, jointly and severally, covenant and agree with each Underwriter that:~~ (a) The Company and the Guarantors covenant and agree as follows: (i) The Company will ~~prepare~~ cause a prospectus supplement to be filed (but only if the ~~Prospectus~~ Underwriters or their counsel has not reasonably objected thereto by notice to the Company after having been furnished a copy a reasonable time prior to filing) in ~~a form approved by~~ connection with the ~~Representatives and file the Prospectus pursuant to Rule 424(b)~~ offering of the ~~Rules~~ Notes and ~~Regulations within~~ will notify the ~~time period prescribed by~~ Underwriters promptly of such ~~Rule;~~ filing. (ii) ~~will not file~~ Until the completion of the distribution of the Notes, the Company shall promptly advise the Underwriters in writing (i) when any amendment to the Registration Statement shall have become effective or any supplement to the Prospectus has been filed, (ii) of any request by the Commission for any amendment of the Registration Statement or the Prospectus or ~~file~~ for any ~~document under the Exchange Act before the termination of the offering of the Notes by the Underwriters if such document would be deemed to be incorporated by reference into the Prospectus~~additional information, ~~which filing is not consented to by the Representatives after reasonable notice thereof (such consent not to be unreasonably withheld or delayed);~~ (iii) will advise the Representatives, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement, the most recent Preliminary Prospectus or the Prospectus has been filed; (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; (v) will advise the Representatives promptly after it receives notice thereof, in each case, of the issuance ~~by the Commission or any state or other regulatory body~~ of any stop ~~order or any~~ order suspending the effectiveness of the Registration ~~Statement, suspending~~ Statement or ~~preventing~~ the ~~use~~ institution or threatening of any ~~Preliminary Prospectus,~~ proceeding for that purpose and (iv) of the ~~Prospectus or~~ receipt by the Company of any ~~Issuer Free Writing Prospectus or suspending~~ notification with respect to the suspension of the qualification of the Notes ~~or the Guarantees~~ for ~~offering or~~ sale in any ~~jurisdiction, of~~ jurisdiction or the initiation or threatening of any ~~proceedings~~ proceeding for ~~any~~ such ~~purpose or pursuant to Section 8A~~ purpose. For a period of 60 days after the ~~Securities Act~~Delivery Date, ~~of receipt by~~ the Company or shall not file any ~~Guarantor from the Commission of any notice of objection to the use~~ amendment of the Registration Statement or ~~any post-effective amendment thereto or of any request by~~ supplement to the ~~Commission for~~ Prospectus, in each case, relating to the ~~amending or supplementing~~ offering of the ~~Registration Statement,~~ Notes unless the ~~Prospectus~~ Company has furnished the Underwriters a copy for its review before filing and shall not file any such proposed amendment or ~~any Issuer Free Writing Prospectus or for additional information; and (vi) will~~ supplement to which the Underwriters reasonably object. The Company shall use its ~~reasonable~~ best efforts to prevent the issuance of any stop order ~~or other such order or any such notice of objection~~ and, if ~~a stop order or other such order is issued or any such notice of objection is received~~issued, to obtain as soon as possible the ~~lifting or~~ withdrawal thereof. (biii) ~~If, at any time prior to~~ Until the completion of the distribution of the Notes, ~~any event occurs or information becomes known that, in~~ the ~~judgment~~ Company shall deliver promptly to the Underwriters such number of the ~~Company or any~~ following documents as the Underwriters shall reasonably request: (i) conformed copies of the ~~Guarantors~~ Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits) and (ii) the Prospectus and any amended or in supplemented Prospectus; and, if the ~~opinion~~ delivery of a prospectus is required at any time after the filing of the ~~Representatives~~ Prospectus in connection with the offering or ~~counsel for~~ sale of the ~~Underwriters, should be set forth in the Disclosure Package or~~ Notes and if at such time any events shall have occurred as a result of which the Prospectus ~~so that the Disclosure Package or the Prospectus,~~ as then amended or ~~supplemented, does not~~ supplemented would include ~~any~~ an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were ~~made~~made when such Prospectus is delivered, not misleading, or or, if for any other reason it is shall be necessary to amend or supplement ~~or amend the Disclosure Package or~~ the Prospectus in order to comply with ~~any law~~the Securities Act, to notify the ~~Company~~ Underwriters and, upon its request, to prepare and ~~the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously~~ furnish without charge to the ~~Representatives and counsel for~~ Underwriters as many copies as the Underwriters a reasonable number of copies thereof. (c) The Company and the Guarantors will furnish to each of the Representatives and to counsel for the Underwriters such number of conformed copies of the Registration Statement, as originally filed and each amendment thereto (excluding exhibits), any Preliminary Prospectus, the Final Term Sheet and any other Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements to any of such documents (other than any document filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, any Preliminary Prospectus or the Prospectus), in each case as soon as available and in such quantities as the Representatives may from time to time reasonably ~~request. (d) During the period in which the Prospectus relating to the Notes and the Guarantees (or in lieu thereof, the notice referred to in Rule 173(a)~~ request of the Rules and Regulations) is required to be delivered under the Securities Act, the Company and the Guarantors will comply with all requirements imposed upon it by the Securities Act and by the Rules and Regulations, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Notes as contemplated by the provisions of this Agreement and by the Prospectus. If during such period any event occurs as a result of which the Disclosure Package or the Prospectus as then an amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or 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 the Securities Act, the Company and the Guarantors~~ which will promptly notify the Representatives and will, subject to Section 4(a) hereof, amend the Registration Statement, amend or supplement the Disclosure Package or the Prospectus, as the case may be, or file any document (in each case, at the expense of the Company and the Guarantors) so as to correct such statement or omission or to effect such compliance~~, and will furnish without charge to each Underwriter as many written and electronic copies of any such amendment or supplement as the Representatives may from time to time reasonably request~~. (eiv) ~~As soon as practicable, the~~ The Company ~~will~~ shall make generally available to its security holders and to the Underwriters as soon as practicable, but not later than 45 days after the end of the 12-month period beginning at the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement ~~satisfying~~ (which need not be audited) of the ~~requirements~~ Company, covering such 12-month period, which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 of the ~~Rules and~~ Securities Act Regulations. (fv) The Company ~~and the Guarantors jointly and severally agree, whether or not this Agreement becomes effective or is terminated or the sale of the Notes~~ shall furnish to the Underwriters ~~is consummated~~and counsel for the Underwriters, ~~to pay all fees~~upon request and without charge, ~~expenses, costs and charges in connection with: (i) the preparation, printing, filing, registration, delivery and shipping~~ copies of the Registration Statement (including ~~any~~ all exhibits ~~thereto)~~thereto and amendments thereof) and all amendments thereof and, ~~any Preliminary Prospectus~~so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, ~~any Issuer Free Writing Prospectus,~~ as many copies of the Prospectus and any amendments or thereof and supplements ~~thereto; (ii)~~ thereto as 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 and the Guarantors’ counsel; (v) the qualification of the Notes and the Guarantees 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 reasonable expenses of counsel to the Underwriters); Underwriters may reasonably request. (vi) ~~any rating of~~ The Company shall reasonably cooperate with the ~~Notes by rating agencies; (vii) the reasonable fees~~ Underwriters and ~~expenses of~~ counsel for the Underwriters in ~~connection with its review of the offering’s compliance with FINRA rules and the filing fees incident~~ endeavoring to ~~FINRA’s review, if any, and approval of the Underwriters’ participation in the offering and distribution of~~ qualify the Notes ~~(it being understood that the expenses described in clause (v)~~ for offer and this clause (vii) of this Section 4(f) shall not exceed, in the aggregate, $10,000); (viii) the services of the Trustee and any agent of the Trustee (including the fees and disbursements of counsel for the Trustee); (ix) any “road show” or other investor presentations relating to the offering of the Notes; and (x) otherwise incident to the performance by the Company and the Guarantors of their obligations hereunder for which provision is not otherwise made in this Section 4(f). It is understood, however, that, except as provided in this Section 4(f) or Sections 7 and 9 hereof, the Underwriters will pay all of their own costs and expenses, including the fees and expenses of counsel to the Underwriters and any advertising expenses incurred sale in connection with the offering under the laws of such jurisdictions as the ~~Notes. (g) Until completion of~~ Underwriters and the Company have mutually agreed are appropriate and shall maintain such qualifications in effect so long as required for the distribution of the Notes; provided, however, that the Company shall not be required in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation as doing business in any jurisdiction. (vii) On or before completion of this offering, the Company ~~will timely file~~ shall make all ~~reports, documents and amendments to previously filed documents~~ filings required ~~to be filed by it pursuant to Section 12, 13(a), 13(c), 14 or 15(d) of~~ under applicable securities laws including any required registration under the Exchange Act. (hviii) The Company will apply the net proceeds from the ~~sale~~ offering of the Notes in the manner set forth under "Use of Proceeds" in ~~the most recent Preliminary Prospectus and~~ the Prospectus. (iix) ~~During~~ Except as stated in this Agreement and in the period beginning on the date hereof and continuing to and including the Closing Date, neither the Company nor any Guarantor will, 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 and the Guarantees (including, without limitation, with respect to the maturity, currency, interest rate and other material terms thereof). (j) The Company and the Guarantors will pay the required Commission filing fees relating to the Notes and the Guarantees 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) If required by Rule 430B(h) of the Rules and RegulationsProspectus, the Company and the Guarantors have not taken, nor 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 Company and the Guarantors will not file any amendment or supplement to such prospectus, which filing is not consented to by the Representatives promptly after reasonable notice thereof (such consent not to be unreasonably withheld or delayed). (l) The Company and the Guarantors will cooperate with the Representatives and with counsel to the Underwriters in connection with the qualification of the Notes and the Guarantees for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Underwriters may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualification and to permit the continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the distribution of the Notes and the Guarantees; provided, however, that in no event will either the Company or the Guarantors be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than for actions or proceedings arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject. (m) Neither the Company nor any of ~~the Guarantors will~~ them take, directly or indirectly, any action designed to ~~cause~~ or ~~result in, or which could~~ that might reasonably be expected to cause or result ~~in, the~~ in stabilization or manipulation of the price of the Notes to facilitate the sale or resale of the Notes. (nx) The Company ~~will~~ and the Guarantors agree to comply in all material respects with all the terms and conditions of the Indenture and all agreements set forth in the representation ~~letter~~ letters of the Company and the Guarantors to DTC relating to the ~~acceptance~~ approval of the Notes by DTC for “"book-entry~~” transfer through~~ " transfer. (xi) The Company and the ~~facilities~~ Guarantors will not voluntarily claim, and will resist actively all attempts to claim, the benefit of ~~DTC~~any usury laws against holders of the Notes. (xii) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by them before the Delivery Date, and to satisfy all conditions precedent to the Underwriters' obligations hereunder to purchase the Notes. (b) The Company agrees to pay (a) the costs incident to the authorization, issuance, sale and delivery of the Notes and any taxes payable in that connection; (b) the costs incident to the preparation, printing and filing under the Securities Act of the Prospectus and any amendments and exhibits thereto; (c) the costs of distributing the Prospectus as originally filed and each amendment thereto and any post-effective amendments thereof (including, in each case, exhibits), the Prospectus and any amendment or supplement to the Prospectus, all as provided in this Agreement; (d) any applicable listing or other fees; (e) the fees and expenses (not in excess, in the aggregate, of $10,000, including related fees and expenses of counsel to the Underwriter) of qualifying the Notes under the securities laws of the several jurisdictions as provided in Section 5(a)(vi) and of preparing, printing and distributing a Blue Sky Memorandum; (f) the costs and expenses of the Company relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Notes, 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, travel and lodging expenses of the representatives and officers of the Company and any such consultants, and one-half of the cost of any aircraft chartered in connection with the road show; (g) all fees and expenses (including fees and expenses of counsel) of the Company and the Guarantors in connection with approval of the Notes by DTC for "book-entry" transfer; and (h) all other costs and expenses incident to the performance of the obligations of the Company under this Agreement; provided that, except as provided in this Section 5(b) and in Section 9 the Underwriters shall pay its own costs and expenses.

Appears in 1 contract

Samples: Underwriting Agreement (Key Energy Services Inc)

Covenants of the Company and the Guarantors. The Company and each of the ~~Guarantors,~~ Guarantors jointly and ~~severally,~~ severally covenant and agree with each Underwriter that: (a) The Company will cause the Prospectus (including any Preliminary Prospectus Supplement and Prospectus Supplement) to be prepared and filed as required by Section 1(a) hereof (but only if the ~~Guarantors (i~~Underwriters or Underwriter Counsel have not reasonably objected thereto by notice to the Company after having been furnished a copy a reasonable time prior to filing) and will notify the Underwriters promptly of such filing. The Company will prepare a final term sheet (the ~~Prospectus~~ “Final Term Sheet”) reflecting the final terms of the Securities, in a form ~~approved by~~ and substance satisfactory to the ~~Representatives~~ Underwriters, and shall file ~~the Prospectus~~ such Final Term Sheet as an “issuer free writing prospectus” pursuant to Rule ~~424(b~~433 as soon as practicable following the execution of this Agreement; provided that the Company shall furnish the Underwriters with copies of any such Final Term Sheet a reasonable amount of time prior to such proposed filing and will not use or file any such document to which the Underwriters or Underwriter Counsel shall object. (b) During the period (beginning on the Applicable Time) in which a prospectus relating to the Securities is required to be delivered under the Securities Act or such date which is 90 days after the Closing Date, whichever is later, the Company will notify the Underwriters promptly of the ~~Rules and Regulations within~~ time when any subsequent amendment to the ~~time period prescribed~~ Registration Statement has become effective or any Preliminary Prospectus Supplement or Prospectus Supplement or other amendment or supplement to the Prospectus or any Issuer Free Writing Prospectus has been filed, or of any request by ~~such Rule; (ii) will not file~~ the Commission for any amendment or supplement to the Registration ~~Statement~~ Statement, a Preliminary Prospectus Supplement or the Prospectus or for additional information. The Company will prepare and file with the Commission, promptly upon the Underwriters’ request, any ~~document under~~ amendments or supplements to the ~~Exchange Act before~~ Registration Statement, the ~~termination~~ General Disclosure Package or the Prospectus that, in the Underwriters’ opinion, may be necessary or advisable in connection with the Underwriters’ distribution of the ~~offering of~~ Securities; and the Notes by the Underwriters 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 notice thereof (such consent not to be unreasonably withheld Company will file no Issuer Free Writing Prospectus or ~~delayed); (iii) will advise the Representatives, promptly after it receives notice thereof, of the time when~~ any amendment or supplement to the Registration Statement, the ~~most recent Preliminary Prospectus~~ General Disclosure Package or the Prospectus ~~has been filed;~~ (ivother than any prospectus supplement relating to the offering of other securities registered under the Registration Statement or any document required to be filed under the Exchange Act that upon filing is deemed to be incorporated by reference therein) ~~will prepare the Final Term Sheet, substantially in the form of Schedule III hereto and approved by~~ to which the Representatives ~~and file~~ or Underwriter Counsel shall reasonably object by notice to the ~~Final Term Sheet pursuant~~ Company after having been furnished a copy a reasonable time prior to ~~Rule 433(d~~the filing. (c) ~~of the Rules and Regulations within the time period prescribed by such Rule; (v)~~ The Company will advise the ~~Representatives~~ Underwriters, promptly after it ~~receives~~ shall receive notice or obtain knowledge thereof~~, in each case~~, of the issuance by the Commission ~~or any state or other regulatory body~~ of any stop ~~order or any~~ order suspending the effectiveness of the Registration Statement, or any order preventing or suspending ~~or preventing~~ the use of any Preliminary ~~Prospectus~~Prospectus Supplement, ~~the~~ Prospectus Supplement or ~~any~~ Issuer Free Writing ~~Prospectus or suspending~~ Prospectus, of the suspension of the qualification or registration of the ~~Notes or the Guarantees~~ Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any ~~proceedings~~ proceeding for any such purpose or pursuant to Section 8A of the Securities Act, of receipt by the Company or any Guarantor 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 informationpurpose; and ~~(vi)~~ it will promptly use its reasonable best efforts to prevent the issuance of any stop order or ~~other~~ to obtain its withdrawal if such ~~order or any such notice of objection and, if~~ a 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~~should be issued. (bd) IfThe Company shall comply with the Securities Act, ~~at any time prior~~ the Exchange Act and the Rules and Regulations to permit completion of the distribution as contemplated in this Agreement, the Registration Statement, the General Disclosure Package and the Prospectus. If at any time when a prospectus relating to the Securities is required to be delivered under the Securities Act or the Exchange Act in connection with the sales of ~~the Notes~~Securities, any event ~~occurs~~ shall have occurred or ~~information becomes known that~~condition shall exist as a result of which it is necessary, in the ~~judgment of the Company or any of the Guarantors or in the~~ reasonable opinion of ~~the Representatives or~~ counsel for the ~~Underwriters~~Underwriters or for the Company, ~~should~~ to amend the Registration Statement in order that the Registration Statement will not contain an untrue statement of a material fact or omit to state a material fact required to be ~~set forth~~ stated therein or necessary to make the statements therein not misleading, to amend or supplement the Prospectus in order that the Prospectus will not include an 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 to amend or supplement the General Disclosure Package or ~~the~~ any Limited Use Issuer Free Writing Prospectus so in order that the General Disclosure Package ~~or the Prospectus, as then amended or supplemented, does~~ and any Limited Use Issuer Free Writing Prospectus will not include ~~any~~ an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in ~~the~~ light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Disclosure Package or the Prospectus in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Representatives and counsel for the Underwriters a reasonable number of copies thereof. (c) The Company and the Guarantors will furnish to each of the Representatives and to counsel for the Underwriters such number of conformed copies of the Registration Statement, as originally filed and each amendment thereto (excluding exhibits), any Preliminary Prospectus, the Final Term Sheet and any other Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements to any of such documents (other than any document filed under the Exchange Act and deemed to shall be incorporated by reference in the Registration Statement, any Preliminary Prospectus or the Prospectus), in each case as soon as available and in such quantities as the Representatives may from time to time reasonably request. (d) During the period in which the Prospectus relating to the Notes and the Guarantees (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is required to be delivered under the Securities Act, the Company and the Guarantors will comply with all requirements imposed upon it by the Securities Act and by the Rules and Regulations, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Notes as contemplated by the provisions of this Agreement and by the Prospectus. If during such period any event occurs as a result of which the Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements thereinnecessary, in the ~~light~~ reasonable opinion of ~~the circumstances then existing~~such counsel, ~~not misleading, or if during~~ at any such ~~period it is necessary~~ time to amend the Registration Statement or amend or supplement the Prospectus, the General Disclosure Package or ~~the~~ any Limited Use Issuer Free Writing Prospectus ~~or file any document~~ in order to comply with the requirements of the Securities Act, Exchange Act or the Rules and Regulations, the Company ~~and the Guarantors~~ will promptly notify the ~~Representatives~~ Underwriters and ~~will~~prepare and file with the Commission (to the extent required by applicable law), subject to ~~Section~~ Sections 4(a) ~~hereof~~and (b), ~~amend the Registration Statement, amend~~ such amendment or supplement ~~the Disclosure Package or the Prospectus, as the case may be, or file any document~~ (in ~~each case, at the expense of the Company~~ form and ~~the Guarantors~~substance reasonably satisfactory to Underwriter Counsel) so as may be necessary to correct such statement or omission or to ~~effect~~ make the Registration Statement, the Prospectus, the General Disclosure Package or any Limited Use Issuer Free Writing Prospectus comply with such ~~compliance~~requirements. The Company will use its best efforts to have any amendment to the Registration Statement be declared effective as soon as possible, and the Company will furnish to the Underwriters and Underwriter Counsel, without ~~charge to each Underwriter as many written and electronic~~ charge, such number of copies of ~~any~~ such amendment or supplement as the ~~Representatives~~ Underwriters may ~~from time to time~~ reasonably request. (e) ~~As soon~~ The Company will promptly deliver to each Underwriter and Underwriter Counsel a signed copy of the Registration Statement, as ~~practicable~~initially filed and all amendments thereto, including all consents and exhibits filed therewith, and will maintain in the Company’s files manually signed copies of such documents for at least five years after the date of filing. The Company will promptly deliver to each Underwriter such number of copies of any Issuer Free Writing Prospectus, Preliminary Prospectus, Preliminary Prospectus Supplement, the Prospectus Supplement, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, and all documents incorporated by reference in the Registration Statement and Prospectus or any amendment thereof or supplement thereto, as such Underwriter may reasonably request. Prior to 10:00 A.M., New York time, on the business day next succeeding the date of this Agreement and from time to time thereafter, the Company will furnish each Underwriter with copies of the Prospectus in New York City in such quantities as such Underwriter may reasonably request. If applicable, copies of any Issuer Free Writing Prospectus and any Preliminary Prospectus, Preliminary Prospectus Supplement, Prospectus, Registration Statement and General Disclosure Package, and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T. (f) The Company will make generally available to its security holders and to the Underwriters as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the date that the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act, an earnings statement ~~satisfying~~ of the ~~requirements of~~ Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and ~~Rule 158 of~~ the Rules and ~~Regulations.~~ Regulations (~~f) The Company and~~ including, at the Guarantors jointly and severally agree, whether or not this Agreement becomes effective or 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 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 option of the Company~~’s independent registered public accounting firm; (iv~~, Rule 158) covering a period of 12 months beginning on the ~~services of~~ date that the ~~Company’s and the Guarantors’ counsel; (v~~Prospectus Supplement is filed pursuant to Rule 424(b) ~~the qualification of the Notes and the Guarantees~~ 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 reasonable expenses of counsel to the Underwriters); (vi) any rating of the Notes by rating agencies; (vii) the reasonable fees and expenses of counsel for the Underwriters in connection with its review of the offering’s compliance with FINRA rules and the filing fees incident to FINRA’s review, if any, and approval of the Underwriters’ participation in the offering and distribution of the Notes (it being understood that the expenses described in clause (v) and this clause (vii) of this Section 4(f) shall not exceed, in the aggregate, $10,000); (viii) the services of the Trustee and any agent of the Trustee (including the fees and disbursements of counsel for the Trustee); (ix) any “road show” or other investor presentations relating to the offering of the Notes; and (x) otherwise incident to the performance by the Company and the Guarantors of their obligations hereunder for which provision is not otherwise made in this Section 4(f). It is understood, however, that, except as provided in this Section 4(f) or Sections 7 and 9 hereof, the Underwriters will pay all of their own costs and expenses, including the fees and expenses of counsel to the Underwriters and any advertising expenses incurred in connection with the offering of the NotesSecurities Act. (g) ~~Until completion~~ During the period of five years from the ~~distribution of the Notes~~Closing Date, the Company will ~~timely file~~ furnish to the Underwriters copies of all reports or other communications (financial or other) furnished to security holders or from time to time published or publicly disseminated by the Company, and will deliver to the Underwriters as soon as they are available, copies of any reports, ~~documents~~ financial statements and ~~amendments~~ proxy or information statements furnished to ~~previously~~ or filed ~~documents~~ with the Commission or any national securities exchange on which any class of securities of the Company is listed; provided, however, that the Company shall not be required to be provide the Underwriters with any such reports that have been filed with the Commission by it electronic transmission pursuant to ~~Section 12, 13(a), 13(c), 14 or 15(d) of the Exchange Act~~XXXXX. (h) The Company will apply the net proceeds from the sale of the ~~Notes in the manner~~ Securities as set forth under the caption “Use of Proceeds” in ~~the most recent Preliminary Prospectus and~~ the Prospectus. (i) The Company will assist the Underwriters in arranging for the Securities to be eligible for clearance and settlement through DTC. (j) The Company, during the period when the Prospectus is required to be delivered under the Securities Act or the Exchange Act, will file all documents required to be filed with the Commission pursuant to the Securities Act, the Exchange Act and the Rules and Regulations within the time periods required thereby. The Company has given the Underwriters notice of any filings made pursuant to the Rules and Regulations within 48 hours prior to the Applicable Time; the Company will give the Underwriters notice of its intention to make any such filing from the Applicable Time to the Closing Date and will furnish the Underwriters with copies of any such documents a reasonable amount of time prior to such proposed filing, as the case may be, and will not file or use any such document to which the Underwriters or Underwriter Counsel shall object. (k) The Company will not at any time, directly or indirectly, take any action designed to, or which might reasonably be expected to, cause or result in, or which has constituted or which might reasonably be expected to constitute, a violation of Regulation M under the Exchange Act, or the stabilization of the price of the Securities to facilitate the sale or resale of any of the Securities. (l) The Company will use its best efforts to continue to meet the requirements to qualify as a REIT under the Code for each of its taxable years for so long as the board of trustees deems it in the best interests of the Company’s shareholders to remain so qualified. (m) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an “investment company,” as such term is defined in the 40 Act. (n) During the period ~~beginning on~~ from the date hereof ~~and continuing to~~ through and including the Closing Date, ~~neither~~ the Company ~~nor any Guarantor will~~and each of the Guarantors will not, without the prior written consent of the Representatives, ~~directly or indirectly, issue~~offer, sell, ~~offer~~ contract to ~~sell, grant any option for the sale of~~ sell or otherwise dispose ~~of,~~ of any debt securities ~~that are substantially similar to~~ issued or guaranteed by the ~~Notes~~ Company or any of the Guarantors and ~~the Guarantees (including, without limitation, with respect to the maturity, currency, interest rate and other material terms thereof)~~having a tenor of more than one year. (jo) The Company ~~and the Guarantors~~ will pay the required Commission filing fees relating to the Notes and the Guarantees within the time period required by Rule 456(b)(1) of the Rules and Regulations without regard to the proviso therein and otherwise use its best efforts, in accordance with Rules 456(b) and 457(r) of the Rules and Regulations. (k) If required by Rule 430B(h) of the Rules and Regulations, the Company and the Guarantors 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 Company and the Guarantors will not file any amendment or supplement to such prospectus, which filing is not consented to by the Representatives promptly after reasonable notice thereof (such consent not to be unreasonably withheld or delayed). (l) The Company and the Guarantors will cooperate cooperation with the ~~Representatives and with counsel~~ Underwriters, to qualify the ~~Underwriters in connection with the qualification of the Notes and the Guarantees~~ Securities for offering and sale ~~by the Underwriters and by dealers~~ under the applicable securities laws of such states and other jurisdictions (domestic or foreign) as the ~~Underwriters~~ Representatives may designate and ~~will~~ to maintain such qualifications in effect so long as may be required for the distribution of the Securities; provided, however, that the Company shall not be obligated to file ~~such consents~~ any general consent to service of process or ~~other documents necessary~~ to qualify or ~~appropriate~~ register as a foreign corporation or as a dealer in ~~order~~ securities in any jurisdiction in which it is not so qualified or registered, or to ~~effect~~ subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. In each jurisdiction in which the Securities have been so qualified or registered, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Securities. The Company will promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales ~~and~~ of, or dealings ~~in such jurisdictions for~~ in, the Securities, as ~~long as may be necessary to complete~~ contemplated by the ~~distribution of~~ provisions hereof, the ~~Notes~~ Registration Statement, the Prospectus and the Guarantees; provided, however, that in no event will either the Company or the Guarantors be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than for actions or proceedings arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subjectGeneral Disclosure Package. (mp) ~~Neither~~ The Company will use its best efforts to do and perform all things required to be done or performed under this Agreement by the Company ~~nor any~~ prior to the Closing Date, and to satisfy all conditions precedent to the delivery of the Guarantors will take, directly or indirectly, any action designed to cause or result in, or which could reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Notes to facilitate the sale or resale of the NotesSecurities. (nq) The Company will comply with all ~~agreements set forth in the representation letter~~ effective applicable provisions of the ~~Company to DTC relating to the acceptance of the Notes for “book~~Xxxxxxxx-~~entry” transfer through the facilities of DTC~~Xxxxx Act.

Appears in 1 contract

Samples: Senior Notes Purchase Agreement (Epr Properties)

Covenants of the Company and the Guarantors. ~~The Company and~~ In further consideration of the agreements of the Underwriters contained in this Agreement, each of the ~~Guarantors, jointly~~ Company and ~~severally, covenant and agree~~ the Guarantors covenants with each Underwriter ~~that~~as follows: (a) The Company and the Guarantors will (i) ~~will~~ prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus in a form approved by the Representatives ~~and file~~ containing information previously omitted at the ~~Prospectus pursuant to Rule 424(b)~~ time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C under the Act and ~~Regulations within the time period prescribed by such Rule;~~ (ii) ~~will not~~ file on a timely basis all reports and any ~~amendment~~ definitive proxy or ~~supplement~~ information statements required to be filed by the Company with the Commission subsequent to the ~~Registration Statement or~~ date of the Prospectus ~~or file any document under the Exchange Act before~~ and prior to the termination of the offering of the ~~Notes~~ Securities by the ~~Underwriters if such document~~ Underwriters. (b) The Company and the Guarantors will (i) 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 under the Act) required to be filed by the Company or any Guarantor with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to ~~be incorporated by reference into~~ have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule III hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, ~~which filing is not consented to by the Representatives after reasonable notice thereof (such consent not to be unreasonably withheld or delayed);~~ (iii) ~~will advise~~ comply with the ~~Representatives, promptly after it receives notice thereof,~~ requirements of the ~~time when~~ Rules and Regulations, including Rules 164 and 433 under the Act, applicable to any ~~amendment or supplement~~ Issuer Free Writing Prospectus, including the requirements relating to timely filing with the ~~Registration Statement~~Commission, ~~the most recent Preliminary Prospectus or the Prospectus has been filed;~~ legending and record keeping and (iv) ~~will prepare~~ not take any action that would result in an Underwriter, the ~~Final Term Sheet, substantially in~~ Company or any Guarantor being required to file with the ~~form of Schedule III hereto and approved by the Representatives and file the Final Term Sheet~~ Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. (c) The Company will prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms of the ~~Rules~~ Securities, in form and ~~Regulations within~~ substance satisfactory to the Representatives and attached as Schedule IV hereto, and shall file such Final Term Sheet as an Issuer Free Writing Prospectus pursuant to Rule 433 under the Act prior to the close of business two business days after the date hereof; provided that the Company shall provide the Representatives with copies of any such Final Term Sheet a reasonable amount of time ~~period prescribed by~~ prior to such ~~Rule;~~ proposed filing and will not use or file any such document to which the Representatives or counsel to the Underwriters shall reasonably object. (vd) The Company will advise the Representatives promptly ~~after it receives notice thereof~~(i) when any post-effective amendment to the Registration Statement shall have become effective, ~~in each case~~(ii) of receipt of any comments from the Commission through the Closing Date, (iii) of any request of the Commission for amendment of the Registration Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, and (iv) of the issuance by the Commission ~~or any state or other regulatory body~~ of any stop ~~order or any~~ order suspending the effectiveness of the Registration ~~Statement,~~ Statement or any order preventing or suspending ~~or preventing~~ the use of any Preliminary Prospectus, ~~the Prospectus or~~ any Issuer Free Writing Prospectus or ~~suspending~~ the ~~qualification~~ Prospectus, or of the ~~Notes or the Guarantees for offering or sale in any jurisdiction, of the initiation or threatening~~ institution of any proceedings for ~~any such~~ that purpose or pursuant to Section 8A of the ~~Securities~~ Act~~, of receipt by the~~ . The Company or any Guarantor 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 (vi) will use its reasonable best efforts to prevent the issuance of any ~~stop order or other~~ such order ~~or any such notice of objection and, if a stop order or other such order is issued or any such notice of objection is received,~~ and to obtain as soon as possible the lifting ~~or withdrawal~~ thereof, if issued. Additionally, each of the Company and the Guarantors agree that it shall (A) pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act, (B) comply with the provisions of Rules 424(b) and 430B, as applicable, under the Act, including with respect to the timely filing of documents thereunder and (C) use its reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) were received in a timely manner by the Commission. (be) IfThe Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives, at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request. (f) Before amending or supplementing the Registration Statement, the General Disclosure Package or the Prospectus (including by way of a report filed under the Exchange Act and incorporated by reference therein) at any time ~~prior~~ during the Prospectus Delivery Period, the Company shall furnish to the Representatives a copy of each such proposed amendment or supplement and neither the Company nor the Guarantors shall file or use any such proposed amendment or supplement to which the Representatives reasonably object. (g) Each of the Company and the Guarantors will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the ~~Notes~~Securities as contemplated in this Agreement and the Prospectus. If during the Prospectus Delivery Period, any event ~~occurs~~ shall occur or ~~information becomes known that~~condition exist as a result of which it is necessary to amend or supplement the Registration Statement, in the ~~judgment of the Company or any of the Guarantors or in the opinion of the Representatives or counsel for the Underwriters, should be set forth in the~~ General Disclosure Package or the Prospectus ~~so that the Disclosure Package or the Prospectus, as then amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary~~ in order to make the statements therein, in the light of the circumstances under which they were ~~made~~made or then prevailing, not misleading, or or, if it is necessary at any time to amend or supplement ~~or amend~~ the Registration Statement, the General Disclosure Package or the Prospectus ~~in order~~ to comply with ~~any~~ applicable law, the Company and the Guarantors ~~will forthwith~~ promptly shall notify the Representatives of any such event or condition and either (i) prepare and file with the Commission an appropriate amendment or supplement ~~or amendment thereto, and will expeditiously furnish~~ to the Representatives and counsel for the Underwriters a reasonable number of copies thereof. (c) The Company and the Guarantors will furnish to each of the Representatives and to counsel for the Underwriters such number of conformed copies of the Registration Statement, ~~as originally filed and each amendment thereto (excluding exhibits), any Preliminary Prospectus,~~ the ~~Final Term Sheet and any other Issuer Free Writing Prospectus,~~ General Disclosure Package or the Prospectus or (ii) prepare and ~~all amendments and supplements to any of such documents (other than any document filed~~ file with the Commission an appropriate filing under the Exchange Act ~~and deemed to~~ which shall be incorporated by reference in the Registration Statement, ~~any Preliminary Prospectus or~~ the ~~Prospectus), in each case as soon as available~~ General Disclosure Package and ~~in such quantities as the Representatives may from time to time reasonably request. (d) During the period in which~~ the Prospectus ~~relating to~~ so that the ~~Notes and the Guarantees (or in lieu thereof~~Registration Statement, the notice referred to in Rule 173(a) of the Rules and Regulations) is required to be delivered under the Securities Act, the Company and the Guarantors will comply with all requirements imposed upon it by the Securities Act and by the Rules and Regulations, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Notes as contemplated by the provisions of this Agreement and by the Prospectus. If during such period any event occurs as a result of which the General Disclosure Package or and the Prospectus as ~~then~~ so amended or supplemented ~~would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein~~will not, in the light of the circumstances under which they were made or then ~~existing~~prevailing, ~~not~~ be misleading, or 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 the Securities Act, the Company and the Guarantors will promptly notify the Representatives and will, subject to Section 4(a) hereof, amend so that the Registration Statement, ~~amend or supplement~~ the General Disclosure Package ~~or the Prospectus, as the case may be, or file any document (in each case, at the expense of the Company~~ and the ~~Guarantors) so as to correct such statement or omission or to effect such compliance, and~~ Prospectus will ~~furnish without charge to each Underwriter as many written and electronic copies of any such amendment or supplement as the Representatives may from time to time reasonably request~~comply with applicable law. (eh) ~~As soon as practicable~~The Company, in cooperation with the ~~Company will make generally available~~ Underwriters, shall endeavor to ~~its security holders and the Underwriters an earnings statement satisfying the requirements of Section 11(a) of~~ qualify the Securities ~~Act~~ for offer and ~~Rule 158 of the Rules and Regulations. (f) The Company and the Guarantors jointly and severally agree, whether or not this Agreement becomes effective or 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 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 and the Guarantors’ counsel; (v) the qualification of the Notes and the Guarantees under the securities or Blue Sky laws of ~~the several~~ such jurisdictions as ~~provided~~ you shall reasonably request and to continue such qualifications in Section 4(l) hereof and the preparation, printing and distribution of a Blue Sky Memorandum (including the related fees and reasonable expenses of counsel to the Underwriters); (vi) any rating of the Notes by rating agencies; (vii) the reasonable fees and expenses of counsel effect so long as is required for the Underwriters in connection with its review of the offering’s compliance with FINRA rules and the filing fees incident to FINRA’s review, if any, and approval of the Underwriters’ participation in the offering and distribution of the Notes (it being understood that the expenses described in clause (v) and this clause (vii) of this Section 4(f) shall not exceed, in the aggregate, $10,000); (viii) the services of the Trustee and any agent of the Trustee (including the fees and disbursements of counsel for the Trustee); (ix) any “road show” or other investor presentations relating to the offering of the Notes; and (x) otherwise incident to the performance by the Company and the Guarantors of their obligations hereunder for which provision is not otherwise made in this Section 4(f). It is understood, however, that, except as provided in this Section 4(f) or Sections 7 and 9 hereof, the Underwriters will pay all of their own costs and expenses, including the fees and expenses of counsel to the Underwriters and any advertising expenses incurred in connection with the offering of the Notes. (g) Until completion of the distribution of the ~~Notes~~Securities; provided, however, that the Company ~~will timely~~ shall not be obligated to file ~~all reports, documents and amendments~~ any general consent to ~~previously filed documents required~~ service of process or to ~~be filed by~~ qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it ~~pursuant~~ is not so qualified or to ~~Section 12, 13(a), 13(c), 14 or 15(d)~~ subject itself to taxation in respect of ~~the Exchange Act~~doing business in any jurisdiction in which it is not otherwise so subject. (hi) The Company will apply the net proceeds from the sale of the ~~Notes~~ Securities as described in the ~~manner set forth in~~ Registration Statement, the ~~most recent Preliminary Prospectus~~ General Disclosure Package and the ~~Prospectus~~Prospectus under the heading “Use of Proceeds”. (ij) The Company shall make generally available to the Company’s and the Guarantors’ security holders and to the Representatives as soon as practicable an earnings statement of the Company and its Subsidiaries (which need not be audited) that satisfies the provisions of Section 11(a) of the Act and the rules and regulations of the Commission thereunder. (k) During the period beginning on the date hereof and continuing to and including the Closing Date, ~~neither~~ not to offer, sell, contract to sell or otherwise dispose of any debt securities of the Company ~~nor any Guarantor will~~or warrants to purchase or otherwise acquire debt securities of the Company substantially similar to the Securities (other than (i) the Securities, ~~without~~ (ii) the Euro-denominated notes to be issued by the Company and the Canadian dollar-denominated notes to be issued by Molson Coors Brewing International LP, as described in the General Disclosure Package, (iii) commercial paper issued in the ordinary course of business or (iv) debt securities or warrants to purchase debt securities permitted with 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 and the Guarantees (including, without limitation, with respect to the maturity, currency, interest rate and other material terms thereof). (j) The Company and the Guarantors will pay the required Commission filing fees relating to the Notes and the Guarantees 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) If required by Rule 430B(h) of the Rules and Regulations, the Company and the Guarantors 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 Company and the Guarantors will not file any amendment or supplement to such prospectus, which filing is not consented to by the Representatives promptly after reasonable notice thereof (such consent not to be unreasonably withheld or delayed). (l) ~~The Company and~~ If the ~~Guarantors will cooperate with~~ third anniversary of the ~~Representatives and with counsel~~ initial effective date of the Registration Statement occurs before all the Securities have been sold by the Underwriters, prior to the ~~Underwriters in connection with the qualification of the Notes~~ third anniversary to file a new shelf registration statement and ~~the Guarantees for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Underwriters may designate and will file such consents~~ to ~~service of process or~~ take any other ~~documents~~ action necessary ~~or appropriate in order to effect such qualification and~~ to permit the ~~continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the distribution~~ public offering of the ~~Notes and~~ Securities to continue without interruption; references herein to the ~~Guarantees; provided, however, that in no event will either~~ Registration Statement shall include the ~~Company or~~ new registration statement declared effective by the Guarantors be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than for actions or proceedings arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subjectCommission. (m) ~~Neither~~ For the period of one year following the date of this Agreement, the Company ~~nor~~ shall furnish to the holders of the Securities as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders’ equity and cash flows of the Company and its consolidated Subsidiaries certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the first fiscal quarter ending after the Closing Date), to make available to the holders of the Securities consolidated summary financial information of the Company and its consolidated Subsidiaries for such quarter in reasonable detail; provided that the Company shall not be required to furnish materials pursuant to this paragraph that are filed and publicly accessible via the XXXXX database. (n) The Company shall not invest or otherwise use the proceeds received by the Company from its sale of the Securities in such a manner as would require the Company or any of its subsidiaries to register as an investment company under the ~~Guarantors~~ Investment Company Act. (o) The Company will not take, directly or indirectly, any action designed to cause or result in, or ~~which could~~ that has constituted or might reasonably be expected to ~~cause~~ constitute, under the Exchange Act or ~~result in~~otherwise, the stabilization or manipulation of the price of any securities of the ~~Notes~~ Company to facilitate the sale or resale of the ~~Notes~~Securities. (np) The Company will ~~comply~~ cooperate with ~~all agreements set forth in~~ the ~~representation letter of~~ Representatives and use its reasonable best efforts to permit the ~~Company~~ Securities to ~~DTC relating to the acceptance of the Notes~~ be eligible for ~~“book-entry” transfer~~ clearance and settlement through ~~the facilities of~~ DTC.

Appears in 1 contract

Samples: Underwriting Agreement (Molson Coors Brewing Co)

Covenants of the Company and the Guarantors. ~~The~~ Each of the Company and ~~each of~~ the ~~Guarantors,~~ Guarantors jointly and ~~severally, covenant and agree with each Underwriter that~~severally agrees: (a) ~~The Company and~~ At any time prior to the ~~Guarantors (i) will prepare the Prospectus in a form approved by the Representatives and file the Prospectus pursuant to Rule 424(b)~~ date of the Rules and Regulations within the time period prescribed by such Rule; (ii) will not file any amendment or supplement to the Registration Statement or the Prospectus or file any document under the Exchange Act before the termination completion of the ~~offering~~ resale of the Notes by the ~~Underwriters~~ Initial Purchaser, to (i) advise the Initial Purchaser as promptly as practicable after obtaining knowledge (and, if ~~such document would be deemed to be incorporated by reference into the Prospectus, which filing is not consented to~~ requested by the ~~Representatives after reasonable notice thereof (~~Initial Purchaser, confirm such consent not to be unreasonably withheld or delayed); (iii) will advise the Representatives, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement, the most recent Preliminary Prospectus or the Prospectus has been filed; (iv) will prepare the Final Term Sheet, substantially advice in ~~the form of Schedule III hereto and approved by the Representatives and file the Final Term Sheet pursuant to Rule 433(d~~writing) of ~~the Rules and Regulations within the time period prescribed by such Rule;~~ (vA) ~~will advise the Representatives promptly after it receives notice thereof, in each case, of~~ the issuance by ~~the Commission or~~ any state ~~or other regulatory body~~ securities commission of any stop order ~~or any order suspending the effectiveness of the Registration Statement, suspending or preventing the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or~~ suspending the qualification or exemption from qualification of any of the Notes ~~or the Guarantees~~ for ~~offering~~ offer or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any state securities commission or other regulatory authority, or (B) the happening of any event that makes any statement of a material fact made in the Pricing Disclosure Package or the Final Offering Circular untrue or that requires the making of any additions to or changes in the Pricing Disclosure Package or the Final Offering Circular in order to make the statements therein, in the light of the ~~initiation or threatening of any proceedings for any such purpose or pursuant to Section 8A of the Securities Act~~circumstances under which they were made, of receipt by the Company or any Guarantor 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 Statementnot misleading, ~~the Prospectus or any Issuer Free Writing Prospectus or for additional information; and~~ (viii) ~~will~~ use its reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption from qualification of any of the Notes under any state securities or Blue Sky laws, and (iii) if, at any time, any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of any of the Notes under any such laws, use its reasonable best efforts to obtain the withdrawal or lifting of such order ~~or any such notice of objection and, if a stop order or other such order is issued or any such notice of objection is received, to obtain as soon as~~ at the earliest possible ~~the lifting or withdrawal thereof~~time. (b) IfTo (i) furnish the Initial Purchaser, without charge, as many copies of the Pricing Disclosure Package and the Final Offering Circular, and any amendments or supplements thereto, as the Initial Purchaser may reasonably request, and (ii) promptly prepare, upon the Initial Purchaser’s reasonable request, any amendment or supplement to the Offering Circular that the Initial Purchaser, upon advice of legal counsel, determines may be necessary in connection with Exempt Resales (and the Company and the Guarantors hereby consent to the use of the Pricing Disclosure Package and the Final Offering Circular, and any amendments and supplements thereto, by the Initial Purchaser in connection with Exempt Resales). (c) Not to amend or supplement the Pricing Disclosure Package or the Final Offering Circular prior to the Closing Date, or at any time prior to the completion of the ~~distribution~~ resale by the Initial Purchaser of all the Notes purchased by the Initial Purchaser, unless the Initial Purchaser shall previously have been advised thereof and shall have provided its written consent thereto. (d) So long as the Initial Purchaser shall hold any of the Notes, (i) if any event ~~occurs or information becomes known that~~shall occur as a result of which, in the reasonable judgment of the Company or ~~any of~~ the ~~Guarantors~~ Initial Purchaser, it becomes necessary or in advisable to amend or supplement the ~~opinion of the Representatives or counsel for the Underwriters, should be set forth in the~~ Pricing Disclosure Package or the ~~Prospectus so that~~ Final Offering Circular in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Pricing Disclosure Package or the ~~Prospectus~~Final Offering Circular to comply with Applicable Law, to prepare, at the expense of the Company, an appropriate amendment or supplement to the Pricing Disclosure Package and the Final Offering Circular (in form and substance reasonably satisfactory to the Initial Purchaser) so that (A) as ~~then~~ so amended or supplemented, ~~does~~ the Pricing Disclosure Package and the Final Offering Circular will not include ~~any~~ an untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) the Pricing Disclosure Package and the Final Offering Circular will comply with Applicable Law and (ii) if in the reasonable judgment of the Company it becomes necessary or ~~if it is necessary~~ advisable to amend or supplement ~~or amend~~ the Pricing Disclosure Package or the ~~Prospectus in order to comply with any law,~~ Final Offering Circular so that the ~~Company~~ Pricing Disclosure Package and the ~~Guarantors~~ Final Offering Circular will ~~forthwith~~ contain all of the information specified in, and meet the requirements of, Rule 144A(d)(4) of the Securities Act, to prepare an appropriate amendment or supplement to the Pricing Disclosure Package or ~~amendment thereto~~the Final Offering Circular (in form and substance reasonably satisfactory to the Initial Purchaser) so that the Pricing Disclosure Package or the Final Offering Circular, as so amended or supplemented, will contain the information specified in, and ~~will expeditiously furnish to~~ meet the ~~Representatives and counsel for the Underwriters a reasonable number of copies thereof~~requirements of, such Rule. (ce) ~~The Company~~ To cooperate with the Initial Purchaser and the ~~Guarantors will furnish to each~~ Initial Purchaser’s counsel in connection with the qualification of the ~~Representatives~~ Notes under the securities or Blue Sky laws of such jurisdictions as the Initial Purchaser may request and ~~to counsel~~ continue such qualification in effect so long as reasonably required for ~~the Underwriters such number of conformed copies~~ Exempt Resales. (f) Whether or not any of the ~~Registration Statement~~Transactions contemplated under the Transaction Documents are consummated or this Agreement is terminated, ~~as originally filed~~ to pay (i) all costs, expenses, fees and ~~each amendment thereto~~ taxes incident to and in connection with: (~~excluding exhibits)~~A) the preparation, ~~any Preliminary Prospectus,~~ printing and distribution of the Pricing Disclosure Package and the Final ~~Term Sheet and any other Issuer Free Writing Prospectus, the Prospectus~~ Offering Circular and all amendments and supplements ~~to any of such documents~~ thereto (~~other than any document filed under the Exchange Act~~ including, without limitation, financial statements and ~~deemed to be incorporated by reference in the Registration Statement, any Preliminary Prospectus or the Prospectus~~exhibits), ~~in each case as soon as available~~ and in such quantities as the Representatives may from time to time reasonably request. (d) During the period in which the Prospectus relating to the Notes and the Guarantees (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is required to be delivered under the Securities Act, the Company and the Guarantors will comply with all requirements imposed upon it by the Securities Act and by the Rules and Regulations, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Notes as contemplated by the provisions of this Agreement and by the Prospectus. If during such period any event occurs as a result of which the Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or 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 the Securities Act, the Company and the Guarantors will promptly notify the Representatives and will, subject to Section 4(a) hereof, amend the Registration Statement, amend or supplement the Disclosure Package or the Prospectus, as the case may be, or file any document (in each case, at the expense of the Company and the Guarantors) so as to correct such statement or omission or to effect such compliance, and will furnish without charge to each Underwriter as many written and electronic copies of any such amendment or supplement as the Representatives may from time to time reasonably request. (e) As soon as practicable, the Company will make generally available to its security holders and the Underwriters an earnings statement satisfying the requirements of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (f) The Company and the Guarantors jointly and severally agree, whether or not this Agreement becomes effective or 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 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~~ prepared and delivered in connection ~~with~~ herewith, (B) the ~~offering~~negotiation, ~~purchase~~printing, ~~sale~~ processing and distribution (including, without limitation, word processing and duplication costs) and delivery of, each of the Transaction Documents, (C) the preparation, issuance and delivery of the Notes; , (~~iii) the services of the Company’s independent registered public accounting firm; (iv) the services of the Company’s and the Guarantors’ counsel; (v~~D) the qualification of the Notes for offer and ~~the Guarantees~~ sale under the securities or Blue Sky laws of the several ~~jurisdictions as provided in Section 4(l~~states (including, without limitation, the fees and disbursements of the Initial Purchaser’s counsel relating to such registration or qualification), (E) ~~hereof~~ furnishing such copies of the Pricing Disclosure Package and the ~~preparation~~Final Offering Circular, ~~printing~~ and ~~distribution~~ all amendments and supplements thereto, as may reasonably be requested for use by the Initial Purchaser, and (F) the performance of ~~a Blue Sky Memorandum~~ the obligations of the Company and the Guarantors obligations under the Registration Rights Agreement, including but not limited to the Exchange Offer and any Shelf Registration Statement (ii) all fees and expenses of the counsel, accountants and any other experts or advisors retained by the Company, (iii) all expenses and listing fees in connection with the application for quotation of the Notes on the Private Offerings, Resales and Trading Automated Linkages market (“PORTAL”), (iv) all fees and expenses (including ~~the related~~ fees and ~~reasonable~~ expenses of ~~counsel to~~ counsel) of the ~~Underwriters); (vi) any rating~~ Company in connection with approval of the Notes by DTC for “book-entry” transfer, (v) all fees charged by rating ~~agencies;~~ agencies in connection with the rating of the Notes, (~~vii~~vi) ~~the~~ all fees and expenses (including reasonable fees and expenses of ~~counsel for~~ counsel) of the ~~Underwriters~~ Trustee and all collateral agents, (vii) all costs and expenses in connection with the creation and perfection of the security interests under the Security Agreement (including without limitation, filing and recording fees, search fees, taxes and costs of title policies) and (viii) all fees, disbursements and out-of-pocket expenses incurred by the Initial Purchaser in connection with its ~~review of the offering’s compliance with FINRA rules and the filing fees incident~~ services to ~~FINRA’s review~~be rendered hereunder including, ~~if any~~without limitation, and approval of the Underwriters’ participation in the offering and distribution of the Notes (it being understood that the expenses described in clause (v) and this clause (vii) of this Section 4(f) shall not exceed, in the aggregate, $10,000); (viii) the services of the Trustee and any agent of the Trustee (including the fees and ~~disbursements~~ expenses of Proskauer Rose LLP, counsel ~~for~~ to the ~~Trustee); (ix)~~ Initial Purchaser, travel and lodging expenses, word processing charges, messenger and duplicating services, facsimile expenses, costs and expenses relating to investor presentations on any “road show” or undertaken in connection with marketing the Notes and other ~~investor presentations relating~~ customary expenditures. If the sale of the Notes provided for herein is not consummated because any condition to the ~~offering~~ to the obligations of the ~~Notes;~~ Initial Purchaser set forth in Section 7 is not satisfied, because this Agreement is terminated pursuant to Section 9 or because of any failure, refusal or inability on the part of the Company to perform all obligations and satisfy all conditions on its part to be performed or satisfied hereunder (~~x) otherwise incident to the performance~~ other than in each case solely by reason of a default by the ~~Company and the Guarantors of their~~ Initial Purchaser on its obligations hereunder ~~for which provision is not otherwise made~~ after all conditions hereunder have been satisfied in ~~this Section 4(f~~accordance herewith)~~. It is understood, however, that, except as provided in this Section 4(f) or Sections 7 and 9 hereof~~, the ~~Underwriters will pay~~ Company agrees to promptly reimburse the Initial Purchaser for all ~~of their own costs~~ fees, disbursements and ~~expenses,~~ out-of-pocket expenses (including the fees and expenses of Proskauer Rose LLP as counsel to for the ~~Underwriters~~ Initial Purchaser), travel and ~~any advertising~~ lodging expenses, word processing charges, messenger and duplicating services, facsimile expenses and other reasonable and customary expenditures) that shall have been incurred by the Initial Purchaser in connection with the ~~offering~~ proposed purchase and sale of the Notes. (g) ~~Until completion~~ To use the proceeds of the ~~distribution~~ Offering in the manner described in the Pricing Disclosure Package and the Final Offering Circular under the caption “Use of Proceeds.” (h) To do and perform all things required to be done and performed under the Transaction Documents prior to and after the Closing Date. (i) Not to, and to ensure that no affiliate (as defined in Rule 501(b) of the Securities Act) of the Company will, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any “security” (as defined in the Securities Act) that would be integrated with the sale of the Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchaser or to the Subsequent Purchasers of the Notes. (j) For so long as any of the Notes remain outstanding, during any period in which the Company ~~will timely file all reports, documents and amendments to previously filed documents required to be filed by it pursuant~~ is not subject to Section ~~12, 13(a), 13(c), 14~~ 13 or 15(d) of the Exchange Act~~. (h) The Company will apply the net proceeds from the sale~~ , to make available, upon request, to any owner of the Notes in connection with any sale thereof and any prospective Subsequent Purchasers of such Notes from such owner, the manner set forth in the most recent Preliminary Prospectus and the Prospectus. (i) During the period beginning on the date hereof and continuing to and including the Closing Date, neither the Company nor any Guarantor will, 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 and the Guarantees (including, without limitation, with respect to the maturity, currency, interest rate and other material terms thereof). (j) The Company and the Guarantors will pay the required Commission filing fees relating to the Notes and the Guarantees within the time period information required by Rule ~~456(b)(1~~144A(d)(4) of under 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~~Securities Act. (k) If required by Rule 430B(h) of the Rules and Regulations, the Company and the Guarantors 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 Company and the Guarantors will not file any amendment or supplement to such prospectus, which filing is not consented to by the Representatives promptly after reasonable notice thereof (such consent not to be unreasonably withheld or delayed). (l) The Company and the Guarantors will cooperate with the Representatives and with counsel to the Underwriters in connection with the qualification of the Notes and the Guarantees for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Underwriters may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualification and to permit the continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the distribution of the Notes and the Guarantees; provided, however, that in no event will either the Company or the Guarantors be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than for actions or proceedings arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject. (m) Neither the Company nor any of the Guarantors will take, directly or indirectly, any action designed to cause or result in, or which could reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Notes to facilitate the sale or resale of the Notes. (n) The Company will To comply with ~~all agreements set forth in~~ the representation letter of the Company to DTC relating to the ~~acceptance~~ approval of the Notes by DTC for “~~book-~~book entry” transfer. (l) To use its commercially reasonable efforts to effect the inclusion of the Notes in PORTAL Market. (m) For so long as any of the Notes remain outstanding, to furnish to the Initial Purchaser copies of all reports and other communications (financial or otherwise) furnished by the Company to the Trustee or to the holders of the Notes and, as soon as available, copies of any reports or financial statements furnished to or filed by the Company with the SEC or any national securities exchange on which any class of securities of the Company may be listed unless such reports or financial statements are filed with the SEC and are publicly available. (n) Except in connection with the Exchange Offer or the filing of the Shelf Registration Statement, to not, and to not authorize or permit any person acting on its behalf to, (i) distribute any offering material in connection with the offer and sale of the Notes other than the Pricing Disclosure Package and the Final Offering Circular and any amendments and supplements to the Final Offering Circular prepared in compliance with this Agreement, or (ii) solicit any offer to buy or offer to sell the Notes by means of any form of general solicitation or general advertising (including, without limitation, as such 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. (o) During the one-year period after the Closing Date (or such shorter period as may be provided for in Rule 144 under the Securities Act, as the same may be in effect from time to time), to not, and to not permit any current or future Subsidiaries of either the Company or any other affiliates (as defined in Rule 144A under the Securities Act) controlled by the Company to, resell any of the Notes which constitute “restricted securities” under Rule 144 that have been reacquired by the Company, any current or future Subsidiaries or any other “affiliates” (as defined in Rule 144A under the Securities Act) controlled by the Company, except pursuant to an effective registration statement under the Securities Act. (p) To pay all stamp, documentary and transfer ~~through~~ taxes and other duties, if any, which may be imposed by the ~~facilities~~ United States or any political subdivision thereof or taxing authority thereof or therein with respect to the issuance of ~~DTC~~the Notes or the sale thereof to the Initial Purchaser. (q) To use its best efforts to complete on or prior to the Closing Date all filings and other similar actions required in connection with the perfection of the security interests as and to the extent contemplated by the Collateral Agreements. (r) To, as promptly as practicable and in no event later than 45 calendar days after the Closing Date, submit an application to the applicable Gaming Authorities (as defined below) requesting approval of the grant of a Lien in favor of the Collateral Agent in 100% of the Capital Stock (as defined in the Gaming Pledge Agreement) of Xxxxxx’x Gaming, Inc. to secure the Obligations pursuant to the terms of the Transaction Documents. The Company shall, as promptly as practicable and in no event later than 5 Business Days after receipt of the approval of the Gaming Authorities to the grant of a Lien in favor of the Collateral Agent in 100% of the Capital Stock of Xxxxxx’x Gaming, Inc. to secure the Obligations pursuant to the terms of the Transaction Documents, (i) deliver to the collateral agent under the Credit Documents (as defined in the Gaming Pledge Agreement) (“First Lien Agent”) or its designee as bailee on behalf of Agent for the benefit of the Noteholder Secured Parties in accordance with the terms of the Intercreditor Agreement, that original stock certificate (together with stock powers executed in blank) representing the Capital Stock of Xxxxxx’x Gaming, Inc. (ii) execute and deliver to the

Appears in 1 contract

Samples: Purchase Agreement (Landrys Restaurants Inc)

Covenants of the Company and the Guarantors. ~~The~~ Each of the Company and ~~each of~~ the ~~Guarantors,~~ Guarantors jointly and ~~severally, covenant and agree with each Underwriter that~~severally agrees: (a) ~~The Company and~~ At any time prior to the ~~Guarantors (i) will prepare the Prospectus in a form approved by the Representatives and file the Prospectus pursuant to Rule 424(b)~~ date of the Rules and Regulations within the time period prescribed by such Rule; (ii) will not file any amendment or supplement to the Registration Statement or the Prospectus or file any document under the Exchange Act before the termination completion of the ~~offering~~ resale of the Notes by the ~~Underwriters~~ Initial Purchaser, to (i) advise the Initial Purchaser promptly after obtaining knowledge (and, if ~~such document would be deemed to be incorporated by reference into the Prospectus, which filing is not consented to~~ requested by the ~~Representatives after reasonable notice thereof (~~Initial Purchaser, confirm such consent not to be unreasonably withheld or delayed); (iii) will advise the Representatives, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement, the most recent Preliminary Prospectus or the Prospectus has been filed; (iv) will prepare the Final Term Sheet, substantially advice in ~~the form of Schedule III hereto and approved by the Representatives and file the Final Term Sheet pursuant to Rule 433(d~~writing) of ~~the Rules and Regulations within the time period prescribed by such Rule;~~ (vA) ~~will advise the Representatives promptly after it receives notice thereof, in each case, of~~ the issuance by ~~the Commission or~~ any state ~~or other regulatory body~~ securities commission of any stop order ~~or any order suspending the effectiveness of the Registration Statement, suspending or preventing the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or~~ suspending the qualification or exemption from qualification of any of the Notes ~~or the Guarantees~~ for ~~offering~~ offer or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any state securities commission or other regulatory authority, or (B) the happening of any event that makes any statement of a material fact made in the Final Offering Circular untrue or that requires the making of any additions to or changes in the Final Offering Circular in order to make the statements therein, in the light of the ~~initiation or threatening of any proceedings for any such purpose or pursuant to Section 8A of the Securities Act~~circumstances under which they were made, of receipt by the Company or any Guarantor 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 Statementnot misleading, ~~the Prospectus or any Issuer Free Writing Prospectus or for additional information; and~~ (viii) ~~will~~ use its commercially reasonable ~~best~~ efforts to prevent the issuance of any stop order or order suspending the qualification or exemption from qualification of any of the Notes under any state securities or Blue Sky laws, and (iii) if, at any time, any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of any of the Notes under any such laws, use its commercially reasonable efforts to obtain the withdrawal or lifting of such order ~~or any such notice of objection and, if a stop order or other such order is issued or any such notice of objection is received, to obtain as soon as~~ at the earliest possible ~~the lifting or withdrawal thereof~~time. (b) IfTo (i) furnish the Initial Purchaser, without charge, as many copies of the Final Offering Circular, and any amendments or supplements thereto, as the Initial Purchaser may reasonably request, and (ii) promptly prepare, upon the Initial Purchaser’s reasonable request, any amendment or supplement to the Offering Circular that the Initial Purchaser, upon written advice of legal counsel, determines may be necessary in connection with Exempt Resales (and the Company hereby consents to the use of the Preliminary Offering Circular and the Final Offering Circular, and any amendments and supplements thereto, by the Initial Purchaser in connection with Exempt Resales). (c) Not to amend or supplement the Offering Circular prior to the Closing Date, or at any time prior to the completion of the ~~distribution~~ resale by the Initial Purchaser of all the Notes purchased by the Initial Purchaser, unless the Initial Purchaser shall previously have been advised thereof and shall have provided its written consent thereto. (d) Until the date upon which the Initial Purchaser shall have completed the resale of the Notes, (i) if any event ~~occurs or information becomes known that~~shall occur as a result of which, in the reasonable judgment of the Company or ~~any~~ the Initial Purchaser, it becomes necessary or advisable to amend or supplement the Final Offering Circular in order to make the statements therein, in the light of the ~~Guarantors~~ circumstances under which they were made, not misleading, or in if it is necessary to amend or supplement the ~~opinion~~ Final Offering Circular to comply with Applicable Law, to prepare, at the expense of the ~~Representatives~~ Company, an appropriate amendment or ~~counsel for~~ supplement to the ~~Underwriters, should be set forth~~ Final Offering Circular (in form and substance reasonably satisfactory to the ~~Disclosure Package or the Prospectus~~ Initial Purchaser) so that ~~the Disclosure Package or the Prospectus,~~ (A) as ~~then~~ so amended or supplemented, ~~does~~ the Final Offering Circular will not include ~~any~~ an untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, ~~or if it is necessary to supplement or amend the Disclosure Package or the Prospectus in order to comply with any law, the Company~~ and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Representatives and counsel for the Underwriters a reasonable number of copies thereof. (cB) The Company and the Guarantors will furnish to each of the Representatives and to counsel for the Underwriters such number of conformed copies of the Registration Statement, as originally filed and each amendment thereto (excluding exhibits), any Preliminary Prospectus, the Final Term Sheet and any other Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements to any of such documents (other than any document filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, any Preliminary Prospectus or the Prospectus), in each case as soon as available and in such quantities as the Representatives may from time to time reasonably request. (d) During the period in which the Prospectus relating to the Notes and the Guarantees (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is required to be delivered under the Securities Act, the Company and the Guarantors Offering Circular will comply with ~~all requirements imposed upon it by the Securities Act~~ Applicable Law and by the Rules and Regulations, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Notes as contemplated by the provisions of this Agreement and by the Prospectus. If during such period any event occurs as a result of which the Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein(ii) if, in the ~~light~~ reasonable judgment of the ~~circumstances then existing~~Company, ~~not misleading,~~ it becomes necessary or ~~if during such period it is necessary~~ advisable to ~~amend the Registration Statement or~~ amend or supplement the ~~Disclosure Package or~~ Final Offering Circular so that the ~~Prospectus or file any document to comply with~~ Final Offering Circular will contain all of the ~~Securities~~ information specified in, and meet the requirements of, Rule 144A(d)(4) of the Act, ~~the Company and the Guarantors will promptly notify the Representatives and will, subject~~ to Section 4(a) hereof, amend the Registration Statement, amend or supplement the Disclosure Package or the Prospectus, as the case may be, or file any document (in each case, at the expense of the Company and the Guarantors) so as to correct such statement or omission or to effect such compliance, and will furnish without charge to each Underwriter as many written and electronic copies of any such prepare an appropriate amendment or supplement to the Final Offering Circular (in form and substance reasonably satisfactory to the Initial Purchaser) so that the Final Offering Circular, as so amended or supplemented, will contain the ~~Representatives may from time to time reasonably request~~information specified in, and meet the requirements of, such Rule. (e) ~~As soon as practicable,~~ To cooperate with the ~~Company will make generally available to its security holders~~ Initial Purchaser and the ~~Underwriters an earnings statement satisfying~~ Initial Purchaser’s counsel in connection with the ~~requirements of Section 11(a)~~ qualification of the ~~Securities Act~~ Notes under the securities or Blue Sky laws of such jurisdictions as the Initial Purchaser may reasonably request and ~~Rule 158 of the Rules and Regulations~~continue such qualification in effect so long as reasonably required for Exempt Resales. (f) ~~The~~ Upon consummation of the Offering and the transactions contemplated under the Offering Documents, each of the Company and the Guarantors jointly and severally ~~agree, whether or not this Agreement becomes effective or is terminated or the sale of the Notes to the Underwriters is consummated,~~ agree to pay (i) all ~~fees~~costs, expenses, ~~costs~~ fees and ~~charges~~ taxes incident to and in connection with: (iA) the preparation, ~~printing, filing, registration, delivery~~ printing and ~~shipping~~ distribution of the ~~Registration Statement~~ Preliminary Offering Circular and the Final Offering Circular and all amendments and supplements thereto (~~including any exhibits thereto~~including, without limitation, financial statements and exhibits), ~~any Preliminary Prospectus, any Issuer Free Writing Prospectus, the Prospectus~~ and ~~any amendments or supplements thereto; (ii) the printing, producing, copying and delivering this Agreement, the Indenture, closing documents (including any compilations thereof) and any~~ all other agreements, memoranda, correspondence and other documents ~~printed~~ prepared and delivered in connection ~~with~~ herewith, (B) the ~~offering~~negotiation, ~~purchase~~printing, ~~sale~~ processing and distribution (including, without limitation, word processing and duplication costs) and delivery of, each of the Offering Documents, (C) the preparation, issuance and delivery of the Notes; , (~~iii) the services of the Company’s independent registered public accounting firm; (iv) the services of the Company’s and the Guarantors’ counsel; (v~~D) the qualification of the Notes for offer and ~~the Guarantees~~ sale under the securities or Blue Sky laws of the several ~~jurisdictions as provided in Section 4(l~~states (including, without limitation, the fees and disbursements of the Initial Purchaser’s counsel relating to such registration or qualification) ~~hereof~~ and (E) furnishing such copies of the Preliminary Offering Circular and the ~~preparation~~Final Offering Circular, ~~printing~~ and ~~distribution of a Blue Sky Memorandum~~ all amendments and supplements thereto, as may reasonably be requested for use by the Initial Purchaser, (~~including the related fees and reasonable expenses of counsel to the Underwriters); (vi~~ii) ~~any rating of the Notes by rating agencies; (vii) the~~ all reasonable fees and expenses of ~~counsel~~ the counsel, accountants and any other experts or advisors retained by the Company, (iii) all expenses and listing fees in connection with the application for quotation of the ~~Underwriters~~ Notes on the Private Offerings, Resales and Trading Automated Linkages (“PORTAL”) market, (iv) all fees and expenses (including reasonable fees and expenses of counsel) of the Company in connection with approval of the Notes by DTC for “book-entry” transfer, (v) all fees charged by rating agencies in connection with the rating of the Notes, (vi) all fees and expenses (including reasonable fees and expenses of counsel) of the Trustee and all collateral agents, (vii) all costs and expenses in connection with the creation and perfection of the security interest in the Collateral (including without limitation, filing and recording fees, search fees, taxes and costs of title policies) and (viii) all reasonable fees, disbursements and out-of-pocket expenses incurred by the Initial Purchaser in connection with its ~~review~~ services to be rendered hereunder including, without limitation, the reasonable fees, expenses and disbursements and charges of Proskauer Rose LLP, counsel to the ~~offering’s compliance with FINRA rules~~ Initial Purchaser, travel and ~~the filing fees incident to FINRA’s review~~lodging expenses, ~~if any~~word processing charges, messenger and ~~approval of the Underwriters’ participation in the offering~~ duplicating services, facsimile expenses and ~~distribution of the Notes (~~other customary expenditures, it being understood that ~~the expenses described in clause (v)~~ no amounts will be due and this clause (vii) of this Section 4(f) shall not exceed, in the aggregate, $10,000); (viii) the services of the Trustee and any agent of the Trustee (including the fees and disbursements of counsel for the Trustee); (ix) any “road show” or other investor presentations relating to the offering of the Notes; and (x) otherwise incident to the performance payable by the Company pursuant to this Agreement unless and until the ~~Guarantors~~ Offering is consummated. (g) To use the proceeds of ~~their obligations hereunder~~ the Offering in the manner described in the Final Offering Circular under the caption “Use of Proceeds.” (h) To do and perform all things required to be done and performed under the Offering Documents prior to and after the Closing Date. (i) Not to, and to ensure that no affiliate (as defined in Rule 501(b) of the Act) of the Company will, sell, offer for ~~which provision is not~~ sale or solicit offers to buy or otherwise ~~made~~ negotiate in ~~this Section 4(f). It is understood, however, that, except~~ respect of any “security” (as ~~provided~~ defined in ~~this Section 4(f~~the Act) ~~or Sections 7 and 9 hereof,~~ that would be integrated with the ~~Underwriters will pay all~~ sale of ~~their own costs and expenses, including~~ the ~~fees and expenses~~ Notes in a manner that would require the registration under the Act of ~~counsel~~ the sale to the ~~Underwriters and any advertising expenses incurred in connection with~~ Initial Purchaser or to the ~~offering~~ Subsequent Purchasers of the Notes. (gj) ~~Until completion~~ For so long as any of the ~~distribution of the Notes~~Notes remain outstanding, during any period in which the Company ~~will timely file all reports, documents and amendments to previously filed documents required to be filed by it pursuant~~ is not subject to Section ~~12, 13(a), 13(c), 14~~ 13 or 15(d) of the Exchange Act~~. (h) The Company will apply the net proceeds from the sale~~ , to make available, upon request, to any owner of the Notes in connection with any sale thereof and any prospective Subsequent Purchasers of such Notes from such owner, the manner set forth in the most recent Preliminary Prospectus and the Prospectus. (i) During the period beginning on the date hereof and continuing to and including the Closing Date, neither the Company nor any Guarantor will, 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 and the Guarantees (including, without limitation, with respect to the maturity, currency, interest rate and other material terms thereof). (j) The Company and the Guarantors will pay the required Commission filing fees relating to the Notes and the Guarantees within the time period information required by Rule ~~456(b)(1~~144A(d)(4) of under 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~~Act. (k) If required by Rule 430B(h) of the Rules and Regulations, the Company and the Guarantors 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 Company and the Guarantors will not file any amendment or supplement to such prospectus, which filing is not consented to by the Representatives promptly after reasonable notice thereof (such consent not to be unreasonably withheld or delayed). (l) The Company and the Guarantors will cooperate with the Representatives and with counsel to the Underwriters in connection with the qualification of the Notes and the Guarantees for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Underwriters may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualification and to permit the continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the distribution of the Notes and the Guarantees; provided, however, that in no event will either the Company or the Guarantors be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than for actions or proceedings arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject. (m) Neither the Company nor any of the Guarantors will take, directly or indirectly, any action designed to cause or result in, or which could reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Notes to facilitate the sale or resale of the Notes. (n) The Company will To comply with ~~all agreements set forth in~~ the representation letter of the Company to DTC relating to the ~~acceptance~~ approval of the Notes by DTC for “~~book-~~book entry” transfer. (l) To use its commercially reasonable efforts to effect the inclusion of the Notes in Private Offerings, Resales and Trading through Automated Linkages Market. (m) For so long as any of the Notes remain outstanding, the Company will furnish to the Initial Purchaser copies of all reports and other communications (financial or otherwise) furnished by the Company to the Trustee or to the holders of the Notes and, as soon as available, copies of any reports or financial statements furnished to or filed by the Company with the SEC or any national securities exchange on which any class of securities of the Company may be listed. (n) Except in connection with the Exchange Offer or the filing of the Shelf Registration Statement, not to, and not to authorize or permit any person acting on its behalf to, (i) distribute any offering material in connection with the offer and sale of the Notes other than the Preliminary Offering Circular and the Final Offering Circular and any amendments and supplements to the Final Offering Circular prepared in compliance with this Agreement, or (ii) solicit any offer to buy or offer to sell the Notes by means of any form of general solicitation or general advertising (including, without limitation, as such terms are used in Regulation D under the Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Act. (o) During the two-year period after the Closing Date (or such shorter period as may be provided for in Rule 144(k) under the Act, as the same may be in effect from time to time), to not, and to not permit any current or future Subsidiaries of either the Company or any other affiliates (as defined in Rule 144A under the Act) controlled by the Company to, resell any of the Notes that constitute “restricted securities” under Rule 144 that have been reacquired by the Company, any current or future Subsidiaries or any other “affiliates” (as defined in Rule 144A under the Act) controlled by the Company, except pursuant to an effective registration statement under the Act. (p) The Company shall pay all stamp, documentary and transfer ~~through~~ taxes and other duties, if any, which may be imposed by the ~~facilities~~ United States or any political subdivision thereof or taxing authority thereof or therein with respect to the issuance of ~~DTC~~the Notes or the sale thereof to the Initial Purchaser. (q) To use their commercially reasonable efforts to complete on or prior to the Closing Date all filings and other similar actions required in connection with the perfection of security interests as and to the extent contemplated by the Collateral Agreements. (r) To cause each of the Guarantors to execute counterparts of this Agreement in the form attached as Exhibit C hereto.

Appears in 1 contract

Samples: Purchase Agreement (Verrazano,inc.)

Covenants of the Company and the Guarantors. The Company and ~~each of~~ the Guarantors, jointly and severally, covenant ~~and agree~~ with each Underwriter ~~that~~as follows: (a) ~~The~~ Immediately following the execution of this Agreement, the Company will prepare a Prospectus setting forth the aggregate principal amount of Notes covered thereby and their terms not otherwise specified in the preliminary prospectus, the name of each Underwriter, the price at which the Notes are to be purchased by the Underwriters from the Company, and such other information as the Representatives and the Company deem appropriate in connection with the offering of the Securities; and the Company and the Guarantors ~~(i)~~ will ~~prepare~~ effect the ~~Prospectus in a form approved by the Representatives and file the Prospectus pursuant to~~ filings required under Rule 424(b~~) of~~ ), in the ~~Rules~~ manner and ~~Regulations~~ within the time period ~~prescribed~~ required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will furnish to the Underwriters as many copies (including by electronic means, if so requested in lieu of paper copies) of the Prospectus as they shall reasonably request, including, if requested by the Underwriters, in addition to or in lieu thereof, electronic copies of the Prospectus. The Company shall pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1)(i) of the 1933 Act Regulations and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations. (b) During the period beginning on the Applicable Time and ending on the later of the Closing Time or such ~~Rule;~~ date, as in the reasonable opinion of counsel for the Underwriters, the Prospectus is no longer required under the 1933 Act or the 1934 Act to be delivered in connection with sales by the Underwriters or a dealer, including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the 1933 Act Regulations (the “Prospectus Delivery Period”), the Company and the Guarantors will comply with the requirements of Rule 430B and will notify the Representatives immediately, and confirm the notice in writing, (i) of the transmittal to the Commission for filing of any amendment to the Registration Statement, (ii) ~~will not file~~ of the transmittal to the Commission for filing of any supplement or amendment to the Prospectus or any document to be filed pursuant to the 1934 Act, (iii) of the receipt of any comments from the Commission with respect to the Registration Statement or Prospectus or documents incorporated or deemed to be incorporated by reference therein, (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the ~~Registration Statement or the~~ Prospectus or file any document under the Exchange Act before the termination of the offering of the Notes by the Underwriters 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 notice thereof (such consent not to be unreasonably withheld or delayed); (iii) will advise the Representatives, promptly after it receives notice thereof, of the time when any amendment or supplement with respect to the ~~Registration Statement~~Securities or for additional information relating thereto, ~~the most recent Preliminary Prospectus or the Prospectus has been filed; (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;~~ (v) ~~will advise the Representatives promptly after it receives notice thereof, in each case,~~ of the issuance by the Commission ~~or any state or other regulatory body~~ of any stop ~~order or any~~ order suspending the effectiveness of the Registration ~~Statement, suspending or preventing the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or suspending the qualification of the Notes~~ Statement or the ~~Guarantees for offering or sale in any jurisdiction, of the~~ initiation ~~or threatening~~ of any proceedings for ~~any such purpose or pursuant to Section 8A of the Securities Act, of receipt by the~~ that purpose. The Company ~~or any~~ and each Guarantor 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 (vi) will ~~use its~~ make every reasonable ~~best efforts~~ effort to prevent the issuance of any such stop order ~~or other such order or any such notice of objection~~ and, if a any stop order ~~or other such order~~ is ~~issued or any such notice of objection is received~~issued, to obtain ~~as soon as possible~~ the lifting ~~or withdrawal thereof~~thereof at the earliest possible moment. (bc) IfDuring the Prospectus Delivery Period, at prior to amending or supplementing the Registration Statement (including any filing under Rule 462(b) of the 1933 Act Regulations), any preliminary prospectus or the Prospectus (including any amendment or supplement through incorporation by reference of any report filed under the 1934 Act), the Company will furnish to the Representatives for review a copy of each such proposed amendment or supplement a reasonable amount of time prior to ~~completion~~ such proposed filing or use, as the case may be, and will not file any such amendment or supplement or use any such prospectus to which counsel for the Underwriters shall reasonably object. The Company has given the Representatives notice of any filings made pursuant to the ~~distribution of~~ 1934 Act or 1934 Act Regulations within 48 hours prior to the ~~Notes, any event occurs or information becomes known that, in the judgment of~~ Applicable Time; the Company will give the Representatives notice of its intention to make any such filing from the Applicable Time to the Closing Time and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing and will not file or use any ~~of the Guarantors or in the opinion of~~ such document to which the Representatives or counsel for the ~~Underwriters, should be~~ Underwriters shall reasonably object by written notice of the Representatives to the Company. The Company will prepare a final term sheet substantially in the form set forth in Schedule C hereto (the ~~Disclosure Package~~ “Final Term Sheet”) reflecting the final terms of the Securities, and shall file such Final Term Sheet as an “issuer free writing prospectus” pursuant to Rule 433 prior to the close of business two business days after the date hereof; provided that the Company shall furnish the Representatives with copies of any such Final Term Sheet a reasonable amount of time prior to such proposed filing and will not use or file any such document to which the Representatives or counsel for the Underwriters shall reasonably object. (d) Upon request, the Company will deliver to the Underwriters a conformed copy of the Original Registration Statement as originally filed, the Post-Effective Amendments and of any other amendment to the Registration Statement filed prior to the termination of the initial offering of the Securities (including exhibits filed therewith or incorporated by reference therein and the documents incorporated by reference into the Prospectus pursuant to Item 12 of Form S-3). (e) The Company will furnish to the Underwriters, from time to time during the Prospectus Delivery Period, such number of copies (including by electronic means, if so requested by the Underwriters, in addition to or in lieu of, paper copies) of the Prospectus (as amended or supplemented) as the Underwriters may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or 1934 Act Regulations. (f) If at any time when a prospectus is required by the 1933 Act to be delivered in connection with the sale of the Securities after the date hereof any event shall occur as a result of which it is necessary, in the opinion of counsel for the Underwriters, which shall be communicated by the Underwriters through the Representatives in writing to the Company, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it is delivered, the Company will promptly either (i) forthwith prepare and furnish to the Underwriters an amendment of or supplement to the Prospectus or (ii) make an appropriate filing pursuant to Section 13, 14 or 15 of the 1934 Act, in each case, in form and substance reasonably satisfactory to counsel for the Underwriters, which will amend or supplement the Prospectus so that ~~the Disclosure Package or the Prospectus, as then amended or supplemented, does~~ it will not include ~~any~~ an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances ~~under which they were made~~existing at the time it is delivered, not misleading, or if it is necessary to supplement or amend the Disclosure Package or the Prospectus in order to comply with any law, the Company and the Guarantors will forthwith prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Representatives and counsel for the Underwriters a reasonable number of copies thereof. (c) The Company and the Guarantors will furnish to each of the Representatives and to counsel for the Underwriters such number of conformed copies of the Registration Statement, as originally filed and each amendment thereto (excluding exhibits), any Preliminary Prospectus, the Final Term Sheet and any other Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements to any of such documents (other than any document filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, any Preliminary Prospectus or the Prospectus), in each case as soon as available and in such quantities as the Representatives may from time to time reasonably request. (d) During the period in which the Prospectus relating to the Notes and the Guarantees (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is required to be delivered under the Securities Act, the Company and the Guarantors will comply with all requirements imposed upon it by the Securities Act and by the Rules and Regulations, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Notes as contemplated by the provisions of this Agreement and by the Prospectus. If ~~during such period~~ at any time after the date hereof, an event or development occurs as a result of which the General Disclosure Package ~~or the Prospectus as then amended or supplemented would include~~ contains an untrue statement of a material fact or ~~omit~~ omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances ~~then existing~~existing at the time it is used, not misleading, ~~or 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 the Securities Act,~~ the Company ~~and the Guarantors~~ will promptly notify the Representatives and ~~will~~will promptly amend or supplement in a manner reasonably satisfactory to the Representatives, ~~subject~~ at its own expense, the General Disclosure Package to eliminate or correct such untrue statement or omission. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement (or any other registration statement relating to the Securities) or the Statutory Prospectus or any preliminary prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company will promptly notify the Representatives and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. If at any time following the distribution of any Written Testing-the-Waters Communication there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Representatives and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Underwriters’ delivery of any such amendment or supplement shall not constitute a waiver of any of the conditions in Section ~~4(a~~5 hereof. (g) Each of the Company and each Guarantor represents and agrees that, unless it obtains the prior written consent of the Representatives, and each Underwriter agrees that, unless it obtains the prior written consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an “issuer free writing prospectus”, as defined in Rule 433, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission; provided, however, that prior to the preparation of the Final Term Sheet in accordance with Section 3(c) hereof, ~~amend~~ the ~~Registration Statement~~Underwriters are authorized to use the information with respect to the final terms of the Securities in communications conveying information relating to the offering to investors. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Company and each Guarantor represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, ~~amend~~ and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (h) The Company and the Guarantors will endeavor in good faith, in cooperation with the Representatives, to qualify the Securities for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions of the United States as the Representatives may designate; provided that, in connection therewith, neither the Company nor any Guarantor shall be required to qualify as a foreign corporation, limited liability company or ~~supplement the Disclosure Package or the Prospectus~~trust, as the case may be, or to file any ~~document (~~general consent to service of process. In each jurisdiction in ~~each case~~which the Securities have been so qualified, ~~at the expense of~~ the Company and the ~~Guarantors)~~ Guarantors will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as ~~to correct such statement or omission or to effect such compliance, and will furnish without charge to each Underwriter as many written and electronic copies~~ required for the distribution of ~~any such amendment or supplement as~~ the ~~Representatives may from time to time reasonably request~~Securities. (ei) ~~As soon as practicable, the~~ The Company will make generally available to its security holders ~~and~~ as soon as reasonably practicable, but not later than 90 days after the ~~Underwriters an earnings statement satisfying the requirements of Section 11(a)~~ close of the ~~Securities Act and~~ period covered thereby, an earning statement of the Company (in form complying with the provisions of Rule 158 of the ~~Rules and~~ 1933 Act Regulations~~. (f~~) ~~The Company and~~ covering a period of at least twelve months beginning not later than the Guarantors jointly and severally agree, whether or not this Agreement becomes effective or 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 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 first day of the Company’s ~~independent registered public accounting firm; (iv)~~ fiscal quarter next following the ~~services~~ effective date of the ~~Company’s~~ Registration Statement. “Earning statement”, “make generally available” and “effective date” will have the ~~Guarantors’ counsel; (v) the qualification~~ meanings contained in Rule 158 of the Notes and the Guarantees 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 reasonable expenses of counsel to the Underwriters); (vi) any rating of the Notes by rating agencies; (vii) the reasonable fees and expenses of counsel for the Underwriters in connection with its review of the offering’s compliance with FINRA rules and the filing fees incident to FINRA’s review, if any, and approval of the Underwriters’ participation in the offering and distribution of the Notes (it being understood that the expenses described in clause (v) and this clause (vii) of this Section 4(f) shall not exceed, in the aggregate, $10,000); (viii) the services of the Trustee and any agent of the Trustee (including the fees and disbursements of counsel for the Trustee); (ix) any “road show” or other investor presentations relating to the offering of the Notes; and (x) otherwise incident to the performance by the Company and the Guarantors of their obligations hereunder for which provision is not otherwise made in this Section 4(f). It is understood, however, that, except as provided in this Section 4(f) or Sections 7 and 9 hereof, the Underwriters will pay all of their own costs and expenses, including the fees and expenses of counsel to the Underwriters and any advertising expenses incurred in connection with the offering of the Notes. (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 in the manner set forth in the most recent Preliminary Prospectus and the Prospectus. (i) During the period beginning on the date hereof and continuing to and including the Closing Date, neither the Company nor any Guarantor will, 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 and the Guarantees (including, without limitation, with respect to the maturity, currency, interest rate and other material terms thereof)1933 Act Regulations. (j) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the General Disclosure Package and the ~~Guarantors will pay~~ Prospectus under the ~~required Commission filing fees relating to the Notes and the Guarantees within the time period required by Rule 456(b)(1)~~ caption “Use of ~~the Rules and Regulations without regard to the proviso therein and otherwise~~ Proceeds” in ~~accordance with Rules 456(b) and 457(r) of the Rules and Regulations~~all material respects. (k) ~~If required by Rule 430B(h) of~~ The Company currently intends to continue to qualify as a “real estate investment trust” under the ~~Rules~~ Code, and ~~Regulations,~~ use its best efforts to continue to meet the ~~Company and~~ requirements for qualification as a “real estate investment trust” under the Guarantors 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 Company and the Guarantors will not file any amendment or supplement to such prospectus, which filing is not consented to by the Representatives promptly after reasonable notice thereof (such consent not to be unreasonably withheld or delayed)Code. (l) The Company ~~and the Guarantors~~ will ~~cooperate with the Representatives and with counsel~~ timely file any document which it is required to file pursuant to the ~~Underwriters in connection with~~ 1934 Act prior to the qualification of the Notes and the Guarantees for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Underwriters may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualification and to permit the continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the distribution of the Notes and the Guarantees; provided, however, that in no event will either the Company or the Guarantors be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than for actions or proceedings arising out termination of the offering ~~or sale~~ of the ~~Notes, in any jurisdiction where it is not now so subject~~Securities. (m) Neither the Company nor ~~any of~~ the Guarantors will ~~take~~offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, ~~any action designed~~ or file with the Commission a registration statement under the 1933 Act relating to ~~cause~~ debt securities issued or ~~result in~~guaranteed by the Company and having a maturity of more than one year from the date of issue, or ~~which could reasonably be expected~~ publicly disclose the intention to ~~cause~~ make any such offer, sale, pledge, disposition or ~~result in~~filing, without the ~~stabilization or manipulation~~ prior written consent of the ~~price~~ Representatives for a period beginning at the date of this Agreement and ending at the later of the ~~Notes to facilitate~~ Closing Time or the ~~sale or resale~~ lifting of trading restrictions by the Representatives. For the avoidance of doubt, this covenant does not prohibit (i) draws and pledges of the ~~Notes. (n) The Company will comply with all agreements set forth~~ equity of Subsidiaries under the Company’s existing $650 million aggregate principal amount secured revolving credit facility which matures in 2027 during the period specified in the ~~representation letter~~ foregoing sentence or (ii) the incurrence or issuance of ~~the Company~~ any secured debt, whether or not securitized, including in each case any related direct or indirect offer, sale, contract to ~~DTC relating to the acceptance of the Notes for “book-entry” transfer through the facilities of DTC~~sell, pledge or other disposition or filing or any public disclosure related thereto.

Appears in 1 contract

Samples: Underwriting Agreement (Service Properties Trust)

Covenants of the Company and the Guarantors. The Company and each of the ~~Guarantors, jointly~~ Guarantors covenants and ~~severally, covenant and agree~~ agrees with each Underwriter that: (a) The Company and the Guarantors ~~(i)~~ will, if the Registration Statement has not heretofore become effective under the Act, file an amendment to the Registration Statement or, if necessary pursuant to Rule 430A of the Securities Act Regulations, file a post-effective amendment to the Registration Statement, as soon as practicable after the execution and delivery of this Agreement, and will ~~prepare~~ use its best efforts to cause the Registration Statement or such post-effective amendment to become effective at the earliest possible time. If the Registration Statement has become or becomes effective pursuant to Rule 430A of the Securities Act Regulations, or filing of the Prospectus ~~in a form approved by~~ is otherwise required under Rule 424(b) of the ~~Representatives~~ Securities Act Regulations, the Company and the Guarantors will file the ~~Prospectus~~ Prospectus, properly completed, pursuant to Rule 424(b) of the ~~Rules and~~ Securities Act Regulations within the time period therein prescribed by and will provide evidence satisfactory to the Underwriters of such ~~Rule;~~ timely filing. The Company and the Guarantors in all other respects will comply fully and in a timely manner with the applicable provisions of Rule 424 and Rule 430A of the Securities Act Regulations. (b) The Company will promptly advise the Underwriters, and confirm such advice in writing, (i) when the Registration Statement or any post-effective amendment thereto has become effective and if and when the Prospectus is sent for filing pursuant to Rule 424(b) of the Securities Act Regulations, (ii) ~~will not file~~ of receipt by the Company or any Guarantor or any representative or attorney of the Company or any Guarantor of any communications from the Commission relating to the Company or any Guarantor, the Registration Statement, any preliminary prospectus, the Prospectus, or the transactions contemplated by this Agreement, including, without limitation, the receipt of a request by the Commission for any amendment or supplement to the Registration Statement or ~~the~~ Prospectus or ~~file~~ for any ~~document under~~ additional information or the ~~Exchange Act before~~ receipt of any comments from the ~~termination of the offering of the Notes by the Underwriters if such document would be deemed to be incorporated by reference into the Prospectus~~Commission, ~~which filing is not consented to by the Representatives after reasonable notice thereof (such consent not to be unreasonably withheld or delayed);~~ (iii) will advise the Representatives, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement, the most recent Preliminary Prospectus or the Prospectus has been filed; (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; (v) will advise the Representatives promptly after it receives notice thereof, in each case, of the issuance by the Commission or any state or other regulatory body of any stop order or any order suspending the effectiveness of the Registration Statement, suspending or preventing the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or suspending the qualification of the Notes or the Guarantees for offering or sale in any jurisdiction, of the initiation or threatening of any proceedings ~~for any such purpose~~ for, or ~~pursuant to Section 8A of the Securities Act, of~~ receipt by the Company or any Guarantor ~~from~~ of any notice with respect to, the issuance by the Commission of any ~~notice of objection to the use~~ stop order suspending effectiveness of the Registration Statement or any post-effective amendment thereto or the use of ~~any request by the Commission for the amending or supplementing of the Registration Statement,~~ the Prospectus or the issuance by any ~~Issuer Free Writing Prospectus~~ state securities commission or other regulatory authority of any order suspending the qualification or exemption from qualification of the Securities for ~~additional information;~~ the offering or sale in any jurisdiction and (viiv) during the period when a prospectus relating to the Securities is required to be delivered under the Act, of any material change in the Company's or any Guarantor's business, prospects, properties, assets, operations, condition (financial or otherwise), net worth or results of operation. The Company and the Guarantors will use ~~its reasonable~~ their best efforts to prevent the issuance of an order by the Commission at any ~~stop order~~ time suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or preventing or suspending the use of the Prospectus or any preliminary prospectus, or by any state securities commission or other ~~such order~~ regulatory authority suspending the qualification or ~~any such notice~~ exemption from qualification of ~~objection~~ the Securities and, if ~~a stop order or other~~ any such order is ~~issued or any such notice of objection is received~~issued, to obtain ~~as soon as~~ the withdrawal or lifting of such order at the earliest possible ~~the lifting or withdrawal thereof~~time. (bc) IfThe Company and the Guarantors will prepare and file with the Commission promptly upon the Underwriters' request, at any ~~time prior~~ amendment to ~~completion of~~ the Registration Statement or any supplement to the Prospectus that may be necessary or advisable in connection with the distribution of the ~~Notes~~Securities by the Underwriters. The Company and the Guarantors will use their best efforts to cause any such amendment or supplement to become effective as promptly as possible. (d) The Company and the Guarantors will not file any amendment to the Registration Statement or any amendment of, or supplement to, the Prospectus, whether before or after the Effective Date, of which the Underwriters and their counsel shall not previously have been advised and provided a copy of reasonably prior to filing thereof or to which any ~~event occurs~~ Underwriter shall reasonably object or ~~information becomes known that,~~ which is not in compliance with the ~~judgment~~ Regulations. (e) The Company and the Guarantors will promptly deliver to the Representative without charge four signed copies of the Registration Statement as initially filed (including all exhibits as filed with the Commission) and four signed copies of all amendments thereto, and the Company and the Guarantors will deliver without charge to those persons designated by each Underwriter such number of conformed copies of the Registration Statement, of each preliminary prospectus, the Prospectus and all amendments of and supplements to such documents, if any, as such Underwriter and its counsel may reasonably request. The Company and the Guarantors consent to the use of the preliminary prospectus, the Prospectus and any amendments or supplements thereto by any Underwriter or any dealer, both in connection with the offering or sale of the Securities and for such period of time thereafter as delivery of a prospectus is required by the Act. (f) During the time that a prospectus relating to the Securities is required to be delivered under the Act, the Company and each of the Guarantors will comply as far as it is able with all requirements imposed upon it by the Act and by the Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of, or in dealing in, the ~~opinion~~ Securities as contemplated by the provisions hereof and the Prospectus. If at any time when a prospectus relating to the Securities is required to be delivered under the Act any event shall have occurred as a result of which the ~~Representatives or counsel for the Underwriters, should be set forth in the Disclosure Package~~ Registration Statement or the Prospectus ~~so that the Disclosure Package or the Prospectus,~~ as then ~~amended or supplemented, does not include any~~ supplemented includes an untrue statement of a material fact or ~~omit~~ omits to state a any material fact required to be stated therein or necessary ~~in order~~ to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is shall be necessary at any time to amend or supplement the Registration Statement or ~~amend the Disclosure Package or the~~ Prospectus ~~in order~~ to comply with ~~any law~~the Act or the Regulations, the Company will notify the Representative promptly and the Company and the Guarantors will ~~forthwith~~ prepare and file with the Commission an appropriate amendment or supplement ~~or amendment thereto,~~ (in form and ~~will expeditiously furnish~~ substance satisfactory to the ~~Representatives and counsel for~~ Underwriters) so that the Underwriters a reasonable number of copies thereof. (c) The Company and the Guarantors will furnish to each of the Representatives and to counsel for the Underwriters such number of conformed copies of the Registration Statement, as originally filed and each amendment thereto (excluding exhibits), any Preliminary Prospectus, the Final Term Sheet and any other Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements to any of such documents (other than any document filed under the Exchange Act and deemed to be incorporated by reference statements in the Registration ~~Statement, any Preliminary Prospectus or~~ Statement and the Prospectus), in each case as soon as available and in such quantities as the Representatives may from time to time reasonably request. (d) During the period in which the Prospectus relating to the Notes and the Guarantees (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is required to be delivered under the Securities Act, the Company and the Guarantors will comply with all requirements imposed upon it by the Securities Act and by the Rules and Regulations, as ~~from time to time in force,~~ so far as is necessary to permit the continuance of sales of or dealings in the Notes as contemplated by the provisions of this Agreement and by the Prospectus. If during such period any event occurs as a result of which the Disclosure Package or the Prospectus as then amended or ~~supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein~~supplemented, will not, in the light of the circumstances ~~then existing~~existing as of the date the Prospectus is so delivered, ~~not~~ be misleading, or ~~if during~~ so to effect 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~~ compliance with the ~~Securities Act~~Act and the Regulations, and the Company and the Guarantors will ~~promptly notify the Representatives and will, subject~~ use their best efforts to ~~Section 4(a) hereof, amend~~ cause any such amendment to the Registration ~~Statement, amend or supplement the Disclosure Package or the Prospectus,~~ Statement to be declared effective as ~~the case may be, or file any document~~ promptly as possible. (~~in each case, at the expense~~ g) Each of the Company and the ~~Guarantors) so as to correct such statement or omission or to effect such compliance~~Guarantors will endeavor in good faith, and will furnish without charge to each Underwriter as many written and electronic copies of any such amendment or supplement as the Representatives may from time to time reasonably request. (e) As soon as practicable, the Company will make generally available to its security holders and in cooperation with the Underwriters ~~an earnings statement satisfying the requirements of Section 11(a) of the Securities Act~~ and ~~Rule 158 of the Rules and Regulations. (f) The Company and the Guarantors jointly and severally agree~~their counsel, ~~whether~~ at or ~~not this Agreement becomes effective or is terminated or the sale of the Notes~~ prior 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~~ time the Registration Statement ~~(including any exhibits thereto)~~becomes effective, ~~any Preliminary Prospectus, any Issuer Free Writing Prospectus,~~ to qualify or register the ~~Prospectus~~ Securities for offering and any amendments or 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 and the Guarantors’ counsel; (v) the qualification of the Notes and the Guarantees under the securities laws of ~~the several~~ such jurisdictions as ~~provided~~ the Representative may designate and to maintain such qualification or registration in Section 4(l) hereof and the preparation, printing and distribution of a Blue Sky Memorandum (including the related fees and reasonable expenses of counsel to the Underwriters); (vi) any rating of the Notes by rating agencies; (vii) the reasonable fees and expenses of counsel effect for the Underwriters in connection with its review of the offering’s compliance with FINRA rules and the filing fees incident to FINRA’s review, if any, and approval of the Underwriters’ participation in the offering and distribution of the Notes (it being understood that the expenses described in clause (v) and this clause (vii) of this Section 4(f) shall not exceed, in the aggregate, $10,000); (viii) the services of the Trustee and any agent of the Trustee (including the fees and disbursements of counsel so long as required for the Trustee); (ix) any “road show” or other investor presentations relating to the offering of the Notes; and (x) otherwise incident to the performance by the Company and the Guarantors of their obligations hereunder for which provision is not otherwise made in this Section 4(f). It is understood, however, that, except as provided in this Section 4(f) or Sections 7 and 9 hereof, the Underwriters will pay all of their own costs and expenses, including the fees and expenses of counsel to the Underwriters and any advertising expenses incurred in connection with the offering of the Notes. (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~~Securities. (h) The Company will ~~apply~~ make generally available (within the ~~net proceeds from the sale~~ meaning of Section 11 (a) of the ~~Notes~~ Act) to its security holders and to the Underwriters as soon as practicable, but not later than 45 days after the close of the period covered thereby, an earnings statement covering a period of at least twelve consecutive full calendar months commencing after the effective date of the Registration Statement (but in no event commencing later than 90 days after such date), that satisfies the ~~manner set forth in~~ provisions of Section 11 (a) of the ~~most recent Preliminary Prospectus~~ Act and Rule 158 of the ~~Prospectus~~Securities Act Regulations. (i) ~~During~~ The Company shall apply the ~~period beginning on the date hereof and continuing to and including the Closing Date, neither the Company nor any Guarantor will, without the prior written consent~~ net proceeds of its sale of the ~~Representatives, directly or indirectly, issue, sell, offer to sell, grant any option for~~ Securities as set forth in the ~~sale~~ Prospectus under the caption "Use of or otherwise dispose of, any debt securities that are substantially similar to the Notes and the Guarantees (including, without limitation, with respect to the maturity, currency, interest rate and other material terms thereof)Proceeds." (j) ~~The Company and the Guarantors will pay the required Commission filing fees relating to the Notes and the Guarantees within the time period required by Rule 456(b)(1)~~ Each 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) If required by Rule 430B(h) of the Rules and Regulations, the Company and the Guarantors will ~~prepare a prospectus~~ timely complete all required filings and otherwise comply fully in a ~~form approved by the Representatives and file such prospectus pursuant to Rule 424(b)~~ timely manner with all provisions of the ~~Rules~~ Exchange Act, including the rules and ~~Regulations not later than may~~ regulations thereunder, to cause the Securities to be ~~required by such Rule; and the~~ registered thereunder. The Company and the Guarantors will not file any ~~amendment~~ document pursuant to the Exchange Act prior to the termination of the offering of the Notes if such document would be incorporated by reference in the Registration Statement unless a copy thereof shall have been provided to the Underwriters and their counsel reasonably prior to the filing thereof and none of them shall have reasonably objected thereto. (k) So long as any of the Securities remain outstanding, the Company and the Guarantors will furnish without charge to the Representative, as soon as available, copies of (i) all reports, financial statements, proxy statements or ~~supplement~~ other publicly available information that the Company shall make generally available to ~~such prospectus~~holders of any of its securities and (ii) all reports, ~~which filing is not consented to~~ financial statements and proxy or information statements filed by the ~~Representatives promptly after reasonable notice thereof (~~Company with the Commission or any national securities exchange and such ~~consent not to be unreasonably withheld~~ other publicly available information concerning the Company or ~~delayed)~~any of its Subsidiaries, including, without limitation, press releases, as the Representative may request. (l) The Company and the Guarantors will ~~cooperate with~~ not voluntarily claim, and will resist actively any attempts to claim, the ~~Representatives and with counsel to~~ benefit of any usury laws against the ~~Underwriters in connection with the qualification~~ holders of the Notes and the Guarantees for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Underwriters may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualification and to permit the continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the distribution of the Notes and the Guarantees; provided, however, that in no event will either the Company or the Guarantors be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than for actions or proceedings arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subjectSecurities. (m) Neither the Company nor any of ~~the Guarantors~~ its Subsidiaries will take, directly or indirectly, any action designed to to, or that might reasonably be expected to, cause or result ~~in, or which could reasonably be expected to cause or result in, the~~ in stabilization or manipulation of the price of any security of the ~~Notes~~ Company to facilitate the sale or resale of the ~~Notes~~Securities. Except as permitted by the Act, the Company and the Guarantors will not distribute any Registration Statement, preliminary prospectus, Prospectus or other offering material in connection with the offering and sale of the Securities. (n) Each of the Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Securities. (o) Each of the Company and the Guarantors will cooperate and assist in any filings required to be made with the National Association of Securities Dealers, Inc. ("NASD") and in the performance of any due diligence investigation by any broker/dealer participating in the sale of the Securities. (p) The Company and the Guarantors will comply with all agreements set forth in the representation ~~letter~~ letters of the Company to ~~DTC~~ the Depository Trust Company ("DTC") relating to the ~~acceptance~~ approval of the ~~Notes~~ Securities by DTC for “"book-entry~~” transfer through~~ " transfer. (q) The Company will obtain approval of the ~~facilities~~ Securities by DTC for "book-entry" transfer. (r) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared, copies of ~~DTC~~any unaudited interim financial statements of the Company and its Subsidiaries, for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus. (s) The Company and its Subsidiaries will not, directly or indirectly, offer, sell or otherwise dispose of any debt securities or securities convertible into or exchangeable for, or any rights to purchase or acquire, debt securities prior to the expiration of 90 days from the date of this Agreement without the prior written consent of the Underwriters. (t) Each of the Company and the Guarantors will comply with the agreements in this Agreement and the Indenture.

Appears in 1 contract

Samples: Underwriting Agreement (Baker J Inc)

Covenants of the Company and the Guarantors. ~~The~~ Each of the Issuer, on the one hand, as to itself individually, and the Company and ~~each of~~ the ~~Guarantors~~Guarantors on the other hand, as to the Company and the Guarantors jointly and severally, ~~covenant and agree with each Underwriter that~~agrees: (a) ~~The Company and the Guarantors~~ To (i) ~~will prepare~~ advise the ~~Prospectus in a form approved~~ Initial Purchaser promptly after obtaining knowledge (and, if requested by the ~~Representatives and file the Prospectus pursuant to Rule 424(b~~Initial Purchaser, confirm such advice in writing) of ~~the Rules and Regulations within the time period prescribed by such Rule;~~ (iiA) will not file any amendment or supplement to the Registration Statement or the Prospectus or file any document under the Exchange Act before the termination of the offering of the Notes by the Underwriters 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 notice thereof (such consent not to be unreasonably withheld or delayed); (iii) will advise the Representatives, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement, the most recent Preliminary Prospectus or the Prospectus has been filed; (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; (v) will advise the Representatives promptly after it receives notice thereof, in each case, of the issuance by ~~the Commission or~~ any state ~~or other regulatory body~~ securities commission of any stop order ~~or any order suspending the effectiveness of the Registration Statement, suspending or preventing the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or~~ suspending the qualification or exemption from qualification of any of the Notes ~~or the Guarantees~~ for ~~offering~~ offer or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any state securities commission or other regulatory authority, or (B) the happening of any event during the period referred to in Section 5(d) that makes any statement of a material fact made in the Final Offering Circular untrue or that requires the making of any additions to or changes in the Final Offering Circular in order to make the statements therein, in the light of the ~~initiation or threatening of any proceedings for any such purpose or pursuant to Section 8A of the Securities Act~~circumstances under which they were made, of receipt by the Company or any Guarantor 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 Statementnot misleading, ~~the Prospectus or any Issuer Free Writing Prospectus or for additional information; and~~ (viii) ~~will~~ use its commercially reasonable ~~best~~ efforts to prevent the issuance of any stop order or order suspending the qualification or exemption from qualification of any of the Notes under any state securities or Blue Sky laws, and (iii) if, at any time, any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of any of the Notes under any such laws, use its commercially reasonable efforts to obtain the withdrawal or lifting of such order ~~or any such notice of objection and, if a stop order or other such order is issued or any such notice of objection is received, to obtain as soon as possible~~ at the ~~lifting or withdrawal thereof~~earliest practicable time. (b) IfTo furnish the Initial Purchaser, without charge, as many copies of the Final Offering Circular, and any amendments or supplements thereto, as the Initial Purchaser may reasonably request. Each of the Issuer and the Company hereby consents to the use of the Preliminary Offering Circular and the Final Offering Circular, and any amendments and supplements thereto, by the Initial Purchaser in connection with Exempt Resales. (c) Except as set forth in Section 5(d), not to amend or supplement the Offering Circular prior to the Closing Date, or at any time prior to the completion of the ~~distribution~~ resale by the Initial Purchaser of all the Notes purchased by the Initial Purchaser, unless the Initial Purchaser shall previously have been advised thereof and shall have provided its written consent thereto (which consent shall not be unreasonably withheld or delayed and shall be provided within three business days from the date on which it was so advised). (d) At any time prior to the completion of the resale by the Initial Purchaser of all of the Notes, ~~any event occurs or information becomes known that~~(i) if, in the reasonable judgment of the ~~Company~~ Issuer or ~~any~~ its counsel, or the Initial Purchaser or its counsel, it may be necessary or advisable to amend or supplement the Final Offering Circular in order to make the statements therein, in the light of the ~~Guarantors~~ circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Final Offering Circular to comply with Applicable Law, to notify the Initial Purchaser or the Company, as the case may be, of any the same and in such case the ~~opinion~~ Company will prepare, at the expense of the ~~Representatives~~ Company, an appropriate amendment or ~~counsel for~~ supplement to the ~~Underwriters, should be set forth~~ Final Offering Circular (in form and substance reasonably satisfactory to the ~~Disclosure Package or the Prospectus~~ Initial Purchaser) so that ~~the Disclosure Package or the Prospectus,~~ (A) as ~~then~~ so amended or supplemented, ~~does~~ the Final Offering Circular will not include ~~any~~ an untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, ~~or if it is necessary to supplement or amend~~ and (B) the ~~Disclosure Package or the Prospectus in order to~~ Final Offering Circular will comply with ~~any law~~Applicable Law and (ii) if in the reasonable judgment of the Issuer it becomes necessary or advisable to amend or supplement the Final Offering Circular so that the Final Offering Circular will contain all of the information specified in, and meet the requirements of, Rule 144A(d)(4) of the Act, to prepare an appropriate amendment or supplement to the Final Offering Circular (in form and substance reasonably satisfactory to the Initial Purchaser) so that the Final Offering Circular, as so amended or supplemented, will contain the information specified in, and meet the requirements of, such Rule. (e) To cooperate with the Initial Purchaser and the Initial Purchaser’s counsel in connection with the qualification of the Notes under the securities or Blue Sky laws of such jurisdictions as the Initial Purchaser may request and continue such qualification in effect so long as reasonably required for Exempt Resales; provided that none of the Issuer, the Company ~~and~~ or any of the Guarantors ~~will forthwith prepare an appropriate supplement~~ shall be obligated to (i) execute or ~~amendment thereto~~file any general consent to service of process or take any action that would subject it to service of process in suits other than those arising out of the offer and sale of the Notes in any jurisdiction in which it is not otherwise subject, ~~and will expeditiously furnish~~ (ii) register or qualify as a foreign corporation or as a dealer in securities in any jurisdiction where it is not now so registered or qualified, or (iii) subject itself to ~~the Representatives and counsel for the Underwriters a reasonable number~~ general taxation in respect of ~~copies thereof~~doing business in any jurisdiction in which it is not otherwise so subject. (cf) ~~The Company~~ Whether or not any of the Offering or the transactions contemplated under the Documents are consummated or this Agreement is terminated, to pay (i) all costs, expenses, fees and taxes (other than federal, state, or local taxes of the Initial Purchaser) incident to and in connection with: (A) the preparation, printing and distribution of the Preliminary Offering Circular and the Guarantors will furnish to each of the Representatives and to counsel for the Underwriters such number of conformed copies of the Registration Statement, as originally filed and each amendment thereto (excluding exhibits), any Preliminary Prospectus, the Final ~~Term Sheet and any other Issuer Free Writing Prospectus, the Prospectus~~ Offering Circular and all amendments and supplements ~~to any of such documents~~ thereto (~~other than any document filed under the Exchange Act~~ including, without limitation, financial statements and ~~deemed to be incorporated by reference in the Registration Statement, any Preliminary Prospectus or the Prospectus~~exhibits), ~~in each case as soon as available~~ and in such quantities as the Representatives may from time to time reasonably request. (d) During the period in which the Prospectus relating to the Notes and the Guarantees (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is required to be delivered under the Securities Act, the Company and the Guarantors will comply with all requirements imposed upon it by the Securities Act and by the Rules and Regulations, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Notes as contemplated by the provisions of this Agreement and by the Prospectus. If during such period any event occurs as a result of which the Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or 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 the Securities Act, the Company and the Guarantors will promptly notify the Representatives and will, subject to Section 4(a) hereof, amend the Registration Statement, amend or supplement the Disclosure Package or the Prospectus, as the case may be, or file any document (in each case, at the expense of the Company and the Guarantors) so as to correct such statement or omission or to effect such compliance, and will furnish without charge to each Underwriter as many written and electronic copies of any such amendment or supplement as the Representatives may from time to time reasonably request. (e) As soon as practicable, the Company will make generally available to its security holders and the Underwriters an earnings statement satisfying the requirements of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. (f) The Company and the Guarantors jointly and severally agree, whether or not this Agreement becomes effective or 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 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~~ prepared and delivered in connection ~~with~~ herewith, (B) the ~~offering~~negotiation, ~~purchase~~printing, ~~sale~~ processing and distribution (including, without limitation, word processing and duplication costs) and delivery of, each of the Documents, (C) the preparation, issuance and delivery of the Notes; , including but not limited to all stamp, documentary and transfer taxes (~~iii) the services~~ other than federal, state, or local taxes of the ~~Company’s independent registered public accounting firm; (iv~~Initial Purchaser) and other duties, if any, which may be imposed by the ~~services~~ United States or any political subdivision thereof or taxing authority thereof or therein with respect to the issuance of the ~~Company’s and~~ Notes or the ~~Guarantors’ counsel;~~ sale thereof to the Initial Purchaser (vD) the qualification of the Notes for offer and ~~the Guarantees~~ sale under the securities or Blue Sky laws of the several ~~jurisdictions as provided in Section 4(l~~states (including, without limitation, the reasonable fees and disbursements of the Initial Purchaser’s counsel relating to such registration or qualification), (E) ~~hereof~~ furnishing such copies of the Preliminary Offering Circular and the ~~preparation~~Final Offering Circular, ~~printing~~ and ~~distribution~~ all amendments and supplements thereto, as may reasonably be requested for use by the Initial Purchaser and (F) the performance of ~~a Blue Sky Memorandum~~ the obligations of the Company and the Guarantors obligations under the Registration Rights Agreement, including but not limited to the Exchange Offer, the Exchange Offer Registration Statement and any Shelf Registration Statement, (ii) all fees and expenses of the counsel, accountants and any other experts or advisors retained by the Company, (iii) all expenses and listing fees in connection with the application for quotation of the Notes on the Private Offerings, Resales and Trading Automated Linkages (“PORTAL”) market, (iv) all fees and expenses (including ~~the related~~ fees and ~~reasonable~~ expenses of ~~counsel to~~ counsel) of the ~~Underwriters); (vi) any rating~~ Company in connection with approval of the Notes by DTC for “book-entry” transfer, (v) all fees charged by rating ~~agencies;~~ agencies in connection with the rating of the Notes, (~~vii~~vi) ~~the~~ all fees and expenses (including reasonable fees and expenses of ~~counsel for~~ counsel) of the ~~Underwriters~~ Trustee and all collateral agents, (vii) all costs and expenses in connection with the creation and perfection of the Liens under the Collateral Agreements (including without limitation, filing and recording fees, search fees, taxes and costs of title policies) and (viii) all fees, disbursements and out-of-pocket expenses incurred by Initial Purchaser in connection with its ~~review~~ services to be rendered hereunder including, without limitation, the fees and disbursements of Xxxxx, Xxxxx Xxxx & Maw LLP, counsel to the ~~offering’s compliance~~ Initial Purchaser, travel and lodging expenses, word processing charges, messenger and duplicating services, facsimile expenses and other customary expenditures in an amount, with ~~FINRA rules and the filing fees incident~~ respect to ~~FINRA’s review~~this clause (viii), ~~if any~~not to exceed $500,000, ~~and approval of the Underwriters’ participation in the offering and distribution of the Notes (it being understood~~ provided that the Initial Purchaser shall be responsible for and shall pay any of its costs and expenses described in the preceding clause ~~(v) and this clause (vii) of this Section 4(f) shall not exceed, in the aggregate, $10,000);~~ (viii) ~~the services~~ in excess of ~~the Trustee and any agent of the Trustee (~~such amount, including the fees and disbursements of ~~counsel~~ its counsel. Notwithstanding the foregoing, none of the Issuer, the Company or any of the Guarantors shall be responsible for any of the foregoing costs, fees or expenses provided in clauses (i) through (viii) above to the extent such costs, fees or expenses have been incurred prior to or in respect of periods prior to December 5, 2004, except for the ~~Trustee);~~ fees and disbursements of Mayer, Brown, Xxxx & Maw LLP referred to in clause (ixviii) ~~any “road show” or other investor presentations relating~~ above, for which the Issuer, the Company and the Guarantors will be responsible, subject to the ~~offering~~ limitations described in clause (viii). (g) In the case of the ~~Notes;~~ Issuer, to apply the net proceeds of the Offering in all material respects as described in the Final Offering Circular under the caption “Use of Proceeds.” (h) To do and ~~(x) otherwise incident~~ perform in all material respects all things required to ~~the performance~~ be done and performed by the Company and the Guarantors under this Agreement prior to and after the Closing Date. (i) Not to, and not to permit any of ~~their obligations hereunder~~ its Subsidiaries or its other affiliates (as defined in Rule 501(b) of the Act), to, sell, offer for ~~which provision is not~~ sale or solicit offers to buy or otherwise ~~made~~ negotiate in ~~this Section 4(f). It is understood, however, that, except~~ respect of any “security” (as ~~provided~~ defined in ~~this Section 4(f~~the Act) ~~or Sections 7 and 9 hereof,~~ that would be integrated with the ~~Underwriters will pay all~~ sale of ~~their own costs and expenses, including~~ the ~~fees and expenses~~ Notes in a manner that would require the registration under the Act of ~~counsel~~ the sale to the ~~Underwriters and any advertising expenses incurred in connection with~~ Initial Purchaser or to the ~~offering~~ Subsequent Purchasers of the Notes. (gj) ~~Until completion~~ From and after the Closing Date, for so long as any of the ~~distribution of the Notes~~Notes remain outstanding, during any period in which the Company ~~will timely file all reports, documents and amendments to previously filed documents required to be filed by it pursuant~~ is not subject to Section ~~12, 13(a), 13(c), 14~~ 13 or 15(d) of the Exchange Act~~. (h) The Company will apply the net proceeds from the sale~~ , to make available, upon request, to any owner of the Notes in connection with any sale thereof and any prospective Subsequent Purchasers of such Notes from such owner, the manner set forth in the most recent Preliminary Prospectus and the Prospectus. (i) During the period beginning on the date hereof and continuing to and including the Closing Date, neither the Company nor any Guarantor will, 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 and the Guarantees (including, without limitation, with respect to the maturity, currency, interest rate and other material terms thereof). (j) The Company and the Guarantors will pay the required Commission filing fees relating to the Notes and the Guarantees within the time period information required by Rule ~~456(b)(1~~144A(d)(4) of under 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~~Act. (k) If required by Rule 430B(h) of the Rules and Regulations, the Company and the Guarantors 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 Company and the Guarantors will not file any amendment or supplement to such prospectus, which filing is not consented to by the Representatives promptly after reasonable notice thereof (such consent not to be unreasonably withheld or delayed). (l) The Company and the Guarantors will cooperate with the Representatives and with counsel to the Underwriters in connection with the qualification of the Notes and the Guarantees for offering and sale by the Underwriters and by dealers under the securities laws of such jurisdictions as the Underwriters may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualification and to permit the continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the distribution of the Notes and the Guarantees; provided, however, that in no event will either the Company or the Guarantors be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than for actions or proceedings arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject. (m) Neither the Company nor any of the Guarantors will take, directly or indirectly, any action designed to cause or result in, or which could reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Notes to facilitate the sale or resale of the Notes. (n) The Company will To comply with ~~all agreements set forth in~~ the representation letter of the Company to DTC relating to the ~~acceptance~~ approval of the Notes by DTC for “~~book-~~book entry” ~~transfer through~~ transfer. (l) To use its reasonable best efforts to assist the ~~facilities~~ Initial Purchaser in effecting the inclusion of ~~DTC~~the Notes on the PORTAL Market. (m) For so long as any of the Notes remain outstanding, the Company will furnish to the Initial Purchaser copies of all reports and other communications (financial or otherwise) furnished by the Company to the Trustee for distribution to the holders of the Notes and, as soon as available, copies of any reports or financial statements furnished to or filed by the Company with the SEC or any national securities exchange on which any class of securities of the Company may be listed; provided, however, that in no case shall the Company be required to furnish materials pursuant to this paragraph which are filed and publicly accessible via XXXXX. (n) Except in connection with the Exchange Offer or the filing of the Shelf Registration Statement, not to, and not to authorize or permit any person acting on its behalf to, (i) distribute any offering material in connection with the offer and sale of the Notes other than the Preliminary Offering Circular and the Final Offering Circular and any amendments and supplements to the Final Offering Circular prepared in compliance with this Agreement, or (ii) solicit any offer to buy or offer to sell the Notes by means of any form of general solicitation or general advertising (including, without limitation, as such terms are used in Regulation D under the Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Act. (o) During the two year period after the Closing Date (or such shorter period as may be provided for in Rule 144(k) under the Act, as the same may be in effect from time to time), to not, and to not permit any current or future Subsidiaries of either the Company or any other affiliates (as defined in Rule 144A under the Act) controlled by the Company to, resell any of the Notes which constitute “restricted securities” under Rule 144 that have been reacquired by the Company, any current or future Subsidiaries of the Company or any other “affiliates” (as defined in Rule 144A under the Act) controlled by the Company, except pursuant to an effective registration statement under the Act. (p) To use their best efforts to complete on or prior to the Closing Date all filings and other similar actions required in connection with the perfection of security interests as and to the extent contemplated by the Collateral Agreements.

Appears in 1 contract

Samples: Purchase Agreement (Edgen Louisiana CORP)

Covenants of the Company and the Guarantors. The Company and ~~each of~~ the ~~Guarantors, jointly and severally,~~ Guarantors covenant ~~and agree~~ with ~~each~~ the Underwriter ~~that~~as follows: (a) The Company and the Guarantors ~~(i)~~ will ~~prepare~~ use their best efforts to cause the ~~Prospectus in a form approved by~~ Registration Statement, if not effective at the ~~Representatives~~ Representation Date, and ~~file~~ any amendment thereof, to become effective, as promptly as possible after the ~~Prospectus pursuant to Rule 424(b) of~~ filing thereof. The Company and the ~~Rules and Regulations within the time period prescribed by such Rule; (ii)~~ Guarantors will not file any amendment to the Registration Statement or any amendment or supplement to the Prospectus to which the Underwriter shall reasonably object in writing after a reasonable opportunity to review such amendment or supplement. Subject to the foregoing sentences in this clause (a), if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Prospectus or file any document under the Exchange Act before the termination of the offering of the Notes by the Underwriters 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 notice thereof (such consent not to be unreasonably withheld or delayed); (iii) will advise the Representatives, promptly after it receives notice thereof, of the time when any amendment or supplement to the ~~Registration Statement~~Prospectus is otherwise required under Rule 424(b), the ~~most recent Preliminary Prospectus~~ Company will cause the Prospectus, properly completed, or such supplement thereto to be filed with the ~~Prospectus has been filed; (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~~ Commission pursuant to the applicable paragraph of Rule ~~433(d~~424(b) ~~of the Rules and Regulations~~ within the time period prescribed and will provide evidence satisfactory to the Underwriter of such timely filing. The Company and the Guarantors will promptly advise the Underwriter (i) when the Registration Statement, if not effective at the Representation Date, and any amendment thereto, shall have become effective, (ii) when the Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (iii) when any amendment to the Registration Statement shall have been filed or become effective, (iv) of any request by ~~such Rule;~~ the Commission for any amendment of the Registration Statement or supplement to any Prospectus or for any additional information, (v) ~~will advise~~ of the ~~Representatives promptly after it receives notice thereof~~receipt by the Company or any Guarantor of any notification of, ~~in each case~~or if the Company or any Guarantor otherwise has knowledge of, of the issuance by the Commission ~~or any state or other regulatory body~~ of any stop ~~order or any~~ order suspending the effectiveness of the Registration ~~Statement, suspending or preventing the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or suspending the qualification of the Notes~~ Statement or the ~~Guarantees for offering or sale in any jurisdiction, of the initiation~~ institution or threatening of any ~~proceedings~~ proceeding for ~~any such~~ that purpose ~~or pursuant to Section 8A~~ and (vi) of the ~~Securities Act, of~~ receipt by the Company or any Guarantor ~~from the Commission~~ of any ~~notice of objection~~ notification with respect to the ~~use~~ suspension of the ~~Registration Statement~~ qualification of the Securities for sale in any jurisdiction or ~~any post-effective amendment thereto~~ the initiation or threatening of any ~~request by~~ proceeding for such purpose. The Company and the ~~Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and (vi)~~ Guarantors will use ~~its reasonable~~ their best efforts to prevent the issuance of any such stop order ~~or other such order or any such notice of objection~~ and, if ~~a stop order or other such order is issued or any such notice of objection is received~~issued, to obtain as soon as possible the lifting ~~or withdrawal~~ thereof. (b) If, at any time ~~prior~~ when a prospectus relating to ~~completion of~~ the ~~distribution of~~ Securities is required to be delivered under the ~~Notes~~Act or the Act Regulations, any event occurs ~~or information becomes known that, in the judgment~~ as a result of ~~the Company or any of the Guarantors or in the opinion of the Representatives or counsel for the Underwriters, should be set forth in the Disclosure Package or~~ which the Prospectus ~~so that the Disclosure Package or the Prospectus,~~ as then amended or ~~supplemented, does not include~~ supplemented would contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary ~~in order~~ to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is shall be necessary to ~~supplement~~ amend the Registration Statement or amend ~~the Disclosure Package~~ or supplement the Prospectus ~~in order~~ to comply with ~~any law~~the Act or the Act Regulations, the Company and the Guarantors promptly will ~~forthwith~~ prepare ~~an appropriate supplement or amendment thereto~~and file with the Commission, ~~and will expeditiously furnish~~ subject to the ~~Representatives and counsel for~~ second sentence of paragraph (a) of this Section 3, an amendment or supplement that will correct such statement or omission or effect such compliance. Neither your consent to, nor your delivery of, any such amendment or supplement shall constitute a waiver of any of the ~~Underwriters a reasonable number of copies thereof~~conditions set forth in Section 5. (c) The Company and the Guarantors ~~will furnish~~ consent to ~~each~~ the use of the ~~Representatives and to counsel for~~ Prospectus in accordance with the ~~Underwriters such number of conformed copies~~ provisions of the Registration Statement, as originally filed and each amendment thereto (excluding exhibits), any Preliminary Prospectus, the Final Term Sheet and any other Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements to any of such documents (other than any document filed under the Exchange Act and ~~deemed to be incorporated by reference in~~ with the ~~Registration Statement, any Preliminary Prospectus~~ securities or blue sky laws of the ~~Prospectus), in each case as soon as available and in such quantities as the Representatives may from time to time reasonably request. (d) During the period~~ jurisdictions in which the ~~Prospectus relating~~ Securities are offered by the Underwriter and by all dealers to whom Securities may be sold, both in connection with the ~~Notes~~ offering and ~~the Guarantees (or in lieu thereof, the notice referred to in Rule 173(a)~~ sale of the ~~Rules~~ Securities and ~~Regulations)~~ for such period of time thereafter as the Prospectus is required by the Act to be delivered ~~under~~ in connection with the ~~Securities Act,~~ sales by the Underwriter or any dealer. The Company and the Guarantors will comply with all requirements imposed upon it them by the ~~Securities Act and by the Rules and Regulations~~Act, as ~~from time to time in force~~now and hereafter amended, so far as is necessary to permit the continuance of sales of or ~~dealings~~ dealing in the ~~Notes as contemplated by~~ Securities in accordance with the provisions ~~of this Agreement~~ hereof and by the Prospectus. If during such period any event occurs as a result of which the Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or 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 the Securities Act, the Company and the Guarantors will promptly notify the Representatives and will, subject to Section 4(a) hereof, amend the Registration Statement, amend or supplement the Disclosure Package or the Prospectus, as the case may be, or file any document (in each case, at the expense of the Company and the Guarantors) so as to correct such statement or omission or to effect such compliance, and will furnish without charge to each Underwriter as many written and electronic copies of any such amendment or supplement as the Representatives may from time to time reasonably request. (ed) As soon as practicable, the Company will make generally available to its ~~security holders~~ securityholders and to the Underwriter a consolidated earnings statement or statements of the Company and the ~~Underwriters an earnings statement satisfying~~ Subsidiaries covering a twelve-month period beginning after the ~~requirements~~ Effective Date that will satisfy the provisions of Section 11(a) of the ~~Securities~~ Act and Rule 158 of under the ~~Rules and~~ Act Regulations. (e) The Company will furnish to the Underwriter, without charge, three signed copies of the Registration Statement (including exhibits thereto and all documents incorporated by reference therein) and, so long as delivery of a prospectus by the Underwriter or a dealer may be required by the Act or the Act Regulations, as many copies of the Prospectus and all amendments and supplements thereto as the Underwriter may reasonably request. (f) During the period of three years hereafter, the Company will furnish to you, as soon as practicable after the end of each fiscal year, a copy of its annual report to shareholders for such year; and the Company will furnish to you as soon as available, a copy of each report or definitive proxy statement of the Company filed with the Commission under Exchange Act or mailed to stockholders. (g) The Company and the Guarantors ~~jointly and severally agree, whether or not this Agreement becomes effective or is terminated or~~ will comply with all the ~~sale~~ provisions of ~~the Notes to the Underwriters is consummated, to pay all fees, expenses, costs and charges~~ any undertakings contained in ~~connection with: (i) the preparation, printing, filing, registration, delivery and shipping of~~ the Registration ~~Statement~~ Statement. (~~including any exhibits thereto), any Preliminary Prospectus, any Issuer Free Writing Prospectus, the Prospectus and any amendments or supplements thereto; (ii~~h) 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 and the Guarantors’ counsel; (v) the qualification of the Notes and the Guarantees 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 reasonable expenses of counsel to the Underwriters); (vi) any rating of the Notes by rating agencies; (vii) the reasonable fees and expenses of counsel for the Underwriters in connection with its review of the offering’s compliance with FINRA rules and the filing fees incident to FINRA’s review, if any, and approval of the Underwriters’ participation in the offering and distribution of the Notes (it being understood that the expenses described in clause (v) and this clause (vii) of this Section 4(f) shall not exceed, in the aggregate, $10,000); (viii) the services of the Trustee and any agent of the Trustee (including the fees and disbursements of counsel for the Trustee); (ix) any “road show” or other investor presentations relating to the offering of the Notes; and (x) otherwise incident to the performance by the The Company and the Guarantors ~~of their obligations hereunder for which provision is~~ will not ~~otherwise made in this Section 4(f). It is understood~~at any time, ~~however~~directly or indirectly, ~~that~~take any action intended, ~~except as provided in this Section 4(f)~~ or ~~Sections 7 and 9 hereof~~that might reasonably be expected, ~~the Underwriters~~ to cause or result in, or that will ~~pay all of their own costs and expenses~~cause, ~~including the fees and expenses of counsel to the Underwriters and any advertising expenses incurred in connection with the offering~~ stabilization of the ~~Notes~~price of any security of the Company to facilitate the sale or resale of any of the Securities. (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. (hi) The Company will apply the net proceeds from the offering and sale of the ~~Notes~~ Securities to be sold in accordance with the ~~manner~~ description set forth in the ~~most recent Preliminary Prospectus and~~ "Use of Proceeds" section of the Prospectus. (i) During the period beginning on the date hereof and continuing to and including the Closing Date, neither the Company nor any Guarantor will, 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 and the Guarantees (including, without limitation, with respect to the maturity, currency, interest rate and other material terms thereof). (j) The Company and the Guarantors will pay the required Commission filing fees relating to the Notes and the Guarantees 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) If required by Rule 430B(h) of the Rules and Regulations, the Company and the Guarantors 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 Company and the Guarantors will not file any amendment or supplement to such prospectus, which filing is not consented to by the Representatives promptly after reasonable notice thereof (such consent not to be unreasonably withheld or delayed). (l) The Company and the Guarantors will cooperate with the ~~Representatives~~ Underwriter and ~~with~~ its counsel ~~to the Underwriters~~ in connection with endeavoring to obtain and maintain the qualification or registration, or exemption from qualification, of the ~~Notes and the Guarantees~~ Securities for ~~offering~~ offer and sale ~~by the Underwriters and by dealers~~ under the applicable securities laws of such states and other jurisdictions of the United States as the ~~Underwriters~~ Underwriter may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualification and to permit the continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the distribution of the Notes and the Guaranteesdesignate; provided~~, however~~, that in no event ~~will either~~ shall the Company or the Guarantors be obligated to qualify to do business in any jurisdiction where ~~it is~~ they are not now so qualified or to take any action ~~which~~ that would subject it them to taxation or general service of process in ~~suits, other than for actions or proceedings arising out of the offering or sale of the Notes, in~~ any jurisdiction where ~~it is~~ they are not now so subject. (m) Neither the Company nor any of the Guarantors will take, directly or indirectly, any action designed to cause or result in, or which could reasonably be expected to cause or result in, the 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 letter of the Company to DTC relating to the acceptance of the Notes for “book-entry” transfer through the facilities of DTC.

Appears in 1 contract

Samples: Underwriting Agreement (Ram Energy Inc/Ok)

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