Covenants of the Company and the Operating Partnership. In further consideration of the agreements of the Underwriter herein contained, the Company and the Operating Partnership covenant with each Underwriter as follows: (a) The Company will cause the Prospectus Supplement to be filed as required by Section 1(a) hereof (but only if the Underwriter or its 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 Underwriter promptly of such filing. During the period in which a prospectus relating to the Shares is required to be delivered under the Act or such date which is 90 days after the Closing Date, whichever is later, the Company will notify the Underwriter promptly of the time when any subsequent amendment to the Registration Statement has become effective or any subsequent supplement to the Prospectus has been filed, or of any request by the Commission for any amendment or supplement to the Registration Statement or Prospectus or for additional information; the Company will prepare and file with the Commission, promptly upon the Underwriter's request, any amendments or supplements to the Registration Statement or Prospectus that, in the Underwriter's opinion, may be necessary or advisable in connection with the Underwriter's distribution of the Shares; and the Company will file no amendment or supplement to the Registration Statement or Prospectus (other 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) to which the Underwriter or its counsel shall reasonably object by notice to the Company after having been furnished a copy a reasonable time prior to the filing. (b) If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will immediately notify you of such event and make every reasonable effort to obtain the withdrawal of such order at the earliest possible time. (c) The Company will comply with all requirements imposed upon it by the Securities Act, the 1933 Act Rules and Regulations, the Exchange Act and the Exchange Act Rules and Regulations as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus. If during such period where a prospectus relating to the Shares is required to be delivered under the Act or such date which is 90 days after the Closing Date, whichever is later, any event occurs as a result of which, in the opinion of Underwriter's counsel, the Registration Statement contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or the Prospectus as then amended or supplemented contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if during such period it is necessary to amend or supplement the Registration Statement or Prospectus to comply with the Securities Act, the Company will promptly notify the Underwriter and will amend or supplement the Registration Statement or Prospectus (at the expense of the Company) so as to correct such statement or omission or effect such compliance. (d) To furnish to you, without charge, (i) three conformed copies of the Registration Statement (including exhibits thereto) and to furnish to you in New York City, without charge, prior to 10:00 A.M. Memphis, Tennessee time on the business day next succeeding the date of this Agreement and during the period mentioned in paragraph (a) above, as many copies of the Prospectus and any supplements and amendments thereto or to the Registration Statement as you may reasonably request, and (ii) such number of copies of the Incorporated Documents, including exhibits, as you may reasonably request. (e) If, during such period after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriter the Prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriter, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Shares may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with law. In the event that the Company and you agree that the Prospectus should be amended or supplemented, the Company, if requested by you, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplement. (f) To endeavor to qualify the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request. (g) The Company will make generally available to its stockholders as soon as practicable, and in the manner contemplated by Rule 158 of the 1933 Act Rules and Regulations but in any event (h) 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, the stabilization of the price of its capital stock to facilitate the sale or resale of any of the Shares. (i) The Company will use the net proceeds received from the sale of the Shares in the manner specified in the Prospectus under the caption "Use of Proceeds." (j) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar (which may be the same entity as the transfer agent) for its Common Stock. (k) The Company will use its best efforts to maintain the listing of the Shares on the NYSE. (l) The Company will use its best efforts (i) to meet the requirements to qualify as a real estate investment trust under the Code and (ii) to cause each of its Subsidiaries that is organized as a partnership to be treated as a partnership for federal income tax purposes. (m) The Company will comply with all of the provisions of any undertakings in the Registration Statement. (n) The Company and its Subsidiaries will conduct their affairs in such a manner so as to ensure that neither the Company nor any Subsidiary will be an "investment company" or an entity "controlled" by an investment company within the meaning of the 1940 Act.
Appears in 1 contract
Samples: Underwriting Agreement (U S Restaurant Properties Inc)
Covenants of the Company and the Operating Partnership. In further consideration Each of the agreements of the Underwriter herein contained, the Company and the Operating Partnership covenant Partnership, jointly and severally, covenants with you, and with each Underwriter participating in the offering of the Notes, as follows:
(a) The Company Operating Partnership will cause the Prospectus Supplement to be filed as required by Section 1(a) hereof (but only if the Underwriter or its counsel have not reasonably objected thereto by notice comply, subject to the Company after having been furnished a copy a reasonable time prior to filing) and will notify remainder of this clause (a), with the Underwriter promptly requirements of such filing. During the period in which a prospectus relating Rule 430B. Prior to the Shares is required to be delivered under termination of the Act or such date which is 90 days after offering of the Closing Date, whichever is laterNotes, the Company Operating Partnership will notify the Underwriter promptly of the time when not use or file any subsequent amendment to the Registration Statement has become effective or any subsequent amendment or supplement to the Disclosure Package or the Prospectus or any new registration statement relating to the Notes unless the Operating Partnership has been filedfurnished you a copy for your review prior to filing and will not file or use any such proposed amendment, supplement or new registration statement to which you reasonably object. The Operating Partnership has given the Representatives notice of any filings made pursuant to the 1934 Act or 1934 Act Regulations within 48 hours prior to the Applicable Time. The Operating Partnership will cause the Prospectus, properly completed, and any supplement thereto to be filed in a form to which the Representatives shall not have reasonably objected with the Commission pursuant to the applicable paragraph of 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Operating Partnership will promptly advise the Representatives (a) of the effectiveness of any amendment to the Registration Statement or any new registration statement relating to the Notes, (b) 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, (c) 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, (d) of any request by the Commission for any amendment or supplement to the Registration Statement or Prospectus or for additional information; the Company will prepare and file with the Commission, promptly upon the Underwriter's request, any amendments or supplements to the Registration Statement or Prospectus that, in the Underwriter's opinion, may be necessary or advisable in connection with the Underwriter's distribution of the Shares; and the Company will file no amendment or supplement to the Registration Statement Prospectus or Prospectus for additional information relating thereto, (other than any prospectus supplement relating to e) of the offering issuance 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) to which the Underwriter or its counsel shall reasonably object by notice to the Company after having been furnished a copy a reasonable time prior to the filing.
(b) If at any time the Commission shall issue any stop order by the Commission suspending the effectiveness of the Registration Statement, or notice objecting to its use pursuant to Rule 401(g)(2), or any order preventing or suspending the use of any preliminary prospectus or the Prospectus or the institution or threatening of any proceedings for that purpose or of any examination pursuant to Section 8(d) or 8(e) of the 1933 Act concerning the Registration Statement, (f) if the Operating Partnership becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Notes, and (g) of the receipt by the Operating Partnership of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Operating Partnership and the Company will use their commercially reasonable efforts to prevent the issuance of any such order or the suspension of any such qualification, and, if issued, to obtain promptly, the withdrawal thereof. The Operating Partnership shall pay the required Commission filing fees relating to the Notes within the time required by Rule 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)).
(b) If, immediately prior to the third anniversary of the initial effective date of the Registration Statement (the “Renewal Deadline”), any Notes remain unsold by the Underwriters, the Operating Partnership will, prior to that date, (i) promptly notify you and (ii) promptly file, if it has not already done so and is eligible to do so, an automatic shelf registration statement relating to the Notes, in a form to which you shall not have reasonably objected. If at the Renewal Deadline the Operating Partnership is not eligible to file an automatic shelf registration statement, the Operating Partnership will, if it has not already done so, (i) promptly notify you, (ii) promptly file, if it has not already done so, a new registration statement or post-effective amendment on the proper form relating to such Notes, in a form to which you shall not have reasonably objected, (iii) use its commercially reasonable efforts to cause such registration statement or post-effective amendment to be declared effective within 180 days after that date and (iv) promptly notify you of such event and make every reasonable effort effectiveness. References herein to obtain the withdrawal of “Registration Statement” shall include such order at automatic shelf registration statement or such new registration statement or post-effective amendment, as the earliest possible timecase may be.
(c) The Company will comply with all requirements imposed upon it by the Securities ActIf, the 1933 Act Rules and Regulations, the Exchange Act and the Exchange Act Rules and Regulations as from at any time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus. If during such period where when a prospectus relating to the Shares Notes is required to be delivered (or but for the exception afforded by Rule 172 of the 1933 Act Regulations (“Rule 172”) would be required to be delivered) under the Act or such date which is 90 days after the Closing Date, whichever is later1933 Act, any event or development occurs as a result of which, in the opinion of Underwriter's counselcounsel for the Underwriters or for the Operating Partnership, the Registration Statement contains an or the Prospectus would include any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading misleading, or if it shall be necessary, in the opinion of counsel for the Underwriters or for the Operating Partnership, to amend the Registration Statement or amend or supplement the Prospectus to comply with the 1933 Act or the Prospectus 1933 Act Regulations or to file a new registration statement relating to the Notes, the Operating Partnership and the Company will promptly (1) notify the Representatives of any such event or development, (2) prepare and file with the Commission, subject to Section 3(a) hereof, such amendment, supplement or new registration statement which will correct such statement or omission, effect such compliance or satisfy such filing requirement, (3) use their commercially reasonable efforts to have any such amendment to the Registration Statement or new registration statement declared effective as then soon as possible (if not an automatic shelf registration statement) and (4) supply any amended or supplemented Prospectus to the Underwriters in such quantities as they may reasonably request. If, at any time after the date hereof, an event or development occurs as a result of which, in the opinion of counsel for the Underwriters or for the Operating Partnership, the Disclosure Package contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if during such period it is necessary to amend or supplement the Registration Statement or Prospectus to comply with the Securities Act, the Company will promptly notify the Underwriter and will amend or supplement the Registration Statement or Prospectus (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(d) To furnish to you, without charge, (i) three conformed copies of the Registration Statement (including exhibits thereto) and to furnish to you in New York City, without charge, prior to 10:00 A.M. Memphis, Tennessee time on the business day next succeeding the date of this Agreement and during the period mentioned in paragraph (a) above, as many copies of the Prospectus and any supplements and amendments thereto or to the Registration Statement as you may reasonably request, and (ii) such number of copies of the Incorporated Documents, including exhibits, as you may reasonably request.
(e) If, during such period after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriter the Prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when existing at the Prospectus time it is delivered to a purchaserused, not misleading, the Operating Partnership and the Company promptly will (1) notify the Representatives of any such event or ifdevelopment, (2) prepare, subject to Section 3(a), an amendment or supplement to the Disclosure Package to eliminate or correct such untrue statement or omission and (3) supply any amended or supplemented Disclosure Package to the Underwriters in such quantities as they may reasonably request. If at any time following the 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, in the opinion of counsel for the UnderwriterUnderwriters or for Operating Partnership, it is necessary conflicted or would conflict with the information contained in the Registration Statement (or any other registration statement relating to amend the Notes), the Statutory Prospectus or supplement the Prospectus or included or would include an untrue statement of a material fact or omitted or would omit to comply with applicable law, forthwith state a material fact necessary in order to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Shares may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that make the statements in the Prospectus as so amended or supplemented will nottherein, in the light of the circumstances when prevailing at that subsequent time, not misleading, the Operating Partnership and the Company will promptly notify the Underwriters 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. The Underwriters’ delivery of any such amendment or supplement shall not constitute a waiver of any of the conditions in Section 5 hereof.
(d) The Operating Partnership will prepare a final term sheet containing only a description of the Notes, in a form approved by the Underwriters and attached as Exhibit D hereto, and will file such term sheet pursuant to Rule 433(d) under the Securities Act within the time required by such rule (such term sheet, the “Final Term Sheet”). Any such Final Term Sheet is delivered an Issuer Free Writing Prospectus for purposes of this Agreement.
(e) The Operating Partnership and the Company agree that, unless it has or shall have obtained the prior written consent of the Underwriters, it has not made and will not make any offer relating to the Notes that would constitute an “issuer free writing prospectus” as defined in Rule 433, or that would otherwise constitute a purchaser“free writing prospectus” (as defined in Rule 405), required to be misleading filed by the Company or so the Operating Partnership with the Commission or retained by the Company or the Operating Partnership under Rule 433, other than the Issuer Free Writing Prospectuses, if any, identified on Schedule II; provided that the prior written consent of the Underwriters shall be deemed to have been given in respect of the Issuer Free Writing Prospectuses included in Schedule II hereto and any electronic road show. Any such free writing prospectus consented to by the Underwriters is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Operating Partnership agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping. The Operating Partnership will furnish to the Underwriters, without charge, copies of any such documents a reasonable amount of time prior to such proposed filing or use, as amended the case may be, and will not file or supplemented, will comply with law. In use any such documents to which the event that Underwriters or counsel for the Company and you agree that the Prospectus should be amended or supplemented, the Company, if requested by you, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplementUnderwriters shall reasonably object.
(f) To endeavor The Company and the Operating Partnership have furnished or will furnish to qualify each Underwriter, without charge, as many signed and conformed copies of the Shares for offer Registration Statement as originally filed and sale under of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) as such Underwriter reasonably requests. The Registration Statement and each amendment thereto furnished to the securities or Blue Sky laws of such jurisdictions as you shall reasonably request.Underwriters will be identical to any electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S‑T.
(g) The Company and the Operating Partnership will furnish, without charge, to each Underwriter, from time to time during the period when the Prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the 1933 Act) is required to be delivered under the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations in connection with sales of the Notes, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to any electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S‑T.
(h) The Operating Partnership will endeavor, in cooperation with the Underwriters, to qualify the Notes 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 reasonably designate; and in each jurisdiction in which the Notes have been so qualified, the Operating Partnership and 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 Notes; provided, however, that neither the Operating Partnership nor the Company shall be obligated to qualify as a foreign corporation or subject itself to general service of process in any jurisdiction where it is not so qualified or so subject.
(i) With respect to each sale of Notes, the Operating Partnership and the Company will each make generally available to its stockholders security holders as soon as practicable, and but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the manner contemplated by provisions of Rule 158 of the 1933 Act Rules and Regulations but Regulations) covering a twelve month period beginning not later than the earlier of the first day of the Operating Partnership’s or Company’s fiscal quarter, respectively, next following the “effective date” (as defined in any eventsuch Rule 158) of the Registration Statement.
(hj) The Company and the Operating Partnership will not at use their commercially reasonable efforts to meet the requirements to qualify as a REIT and a partnership, respectively, under the Code, unless the Company’s board of directors determines that it is no longer in the best interests of the Company to do so.
(k) The Operating Partnership and the Company, during the period when the Prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the 1933 Act) is required to be delivered under the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations in connection with sales of the Notes, will file all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time periods prescribed by the 1934 Act and the 1934 Act Regulations.
(l) The Company and the Operating Partnership will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any time, directly or indirectly, take any action transaction which is designed to, or which might reasonably be expected to, cause result in the disposition during the period described in this subsection (l) (whether by actual disposition or result ineffective economic disposition due to cash settlement or otherwise) by the Company and the Operating Partnership or any affiliate thereof or any person in privity with the Company, Operating Partnership or any affiliate of either of them), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of), or which has constituted establish or which might reasonably be expected to constitute, increase a put equivalent position or liquidate or decrease a call equivalent position within the stabilization meaning of Section 16 of the price of its capital stock to facilitate the sale or resale of Exchange Act, any other debt securities of the SharesOperating Partnership or the Company or any securities convertible into or exercisable or exchangeable for such debt securities, or publicly announce an intention to effect any such transaction, for a period beginning at the Execution Time and ending on the Closing Date.
(im) The Company will use the net proceeds received by it from the each sale of the Shares Notes in the manner specified set forth in the Disclosure Package and the Prospectus under the caption "“Use of Proceeds."
(j) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar (which may be the same entity as the transfer agent) for its Common Stock.
(k) The Company will use its best efforts to maintain the listing of the Shares on the NYSE.
(l) The Company will use its best efforts (i) to meet the requirements to qualify as a real estate investment trust under the Code and (ii) to cause each of its Subsidiaries that is organized as a partnership to be treated as a partnership for federal income tax purposes.
(m) The Company will comply with all of the provisions of any undertakings in the Registration Statement.”
(n) The Company will engage and maintain, at its expense, a Trustee for the Notes.
(o) In respect of the offering of the Notes, the Operating Partnership will (i) execute a supplemental indenture designating the series of debt securities to be offered and its Subsidiaries will conduct their affairs related terms and provisions in such a manner so as to ensure that neither accordance with the Company nor any Subsidiary will be an "investment company" or an entity "controlled" by an investment company within the meaning provisions of the 1940 Indenture and (ii) cause the Indenture to be or remain qualified under the 1939 Act.
Appears in 1 contract
Samples: Underwriting Agreement (Tanger Properties LTD Partnership /Nc/)
Covenants of the Company and the Operating Partnership. In further consideration Each of the agreements of the Underwriter herein contained, the Company and the Operating Partnership covenant Partnership, jointly and severally, covenants with you, and with each Underwriter participating in the offering of the Notes, as follows:
(a) The Company Operating Partnership will cause the Prospectus Supplement to be filed as required by Section 1(a) hereof (but only if the Underwriter or its counsel have not reasonably objected thereto by notice comply, subject to the Company after having been furnished a copy a reasonable time prior to filing) and will notify remainder of this clause (a), with the Underwriter promptly requirements of such filing. During the period in which a prospectus relating Rule 430B. Prior to the Shares is required to be delivered under termination of the Act or such date which is 90 days after offering of the Closing Date, whichever is laterNotes, the Company Operating Partnership will notify the Underwriter promptly of the time when not use or file any subsequent amendment to the Registration Statement has become effective or any subsequent amendment or supplement to the Disclosure Package or the Prospectus or any new registration statement relating to the Notes unless the Operating Partnership has been filedfurnished you a copy for your review prior to filing and will not file or use any such proposed amendment, supplement or new registration statement to which you reasonably object. The Operating Partnership has given the Representatives notice of any filings made pursuant to the 1934 Act or 1934 Act Regulations within 48 hours prior to the Applicable Time. The Operating Partnership will cause the Prospectus, properly completed, and any supplement thereto to be filed in a form to which the Representatives shall not have reasonably objected with the Commission pursuant to the applicable paragraph of 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Operating Partnership will promptly advise the Representatives (a) of the effectiveness of any amendment to the Registration Statement or any new registration statement relating to the Notes, (b) 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, (c) 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, (d) of any request by the Commission for any amendment or supplement to the Registration Statement or Prospectus or for additional information; the Company will prepare and file with the Commission, promptly upon the Underwriter's request, any amendments or supplements to the Registration Statement or Prospectus that, in the Underwriter's opinion, may be necessary or advisable in connection with the Underwriter's distribution of the Shares; and the Company will file no amendment or supplement to the Registration Statement Prospectus or Prospectus for additional information relating thereto, (other than any prospectus supplement relating to e) of the offering issuance 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) to which the Underwriter or its counsel shall reasonably object by notice to the Company after having been furnished a copy a reasonable time prior to the filing.
(b) If at any time the Commission shall issue any stop order by the Commission suspending the effectiveness of the Registration Statement, or notice objecting to its use pursuant to Rule 401(g)(2), or any order preventing or suspending the use of any preliminary prospectus or the Prospectus or the institution or threatening of any proceedings for that purpose or of any examination pursuant to Section 8(d) or 8(e) of the 1933 Act concerning the Registration Statement, (f) if the Operating Partnership becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Notes, and (g) of the receipt by the Operating Partnership of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Operating Partnership and the Company will use their commercially reasonable efforts to prevent the issuance of any such order or the suspension of any such qualification, and, if issued, to obtain promptly, the withdrawal thereof. The Operating Partnership shall pay the required Commission filing fees relating to the Notes within the time required by Rule 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)).
(b) If, immediately prior to the third anniversary of the initial effective date of the Registration Statement (the “Renewal Deadline”), any Notes remain unsold by the Underwriters, the Operating Partnership will, prior to that date, (i) promptly notify you and (ii) promptly file, if it has not already done so and is eligible to do so, an automatic shelf registration statement relating to the Notes, in a form to which you shall not have reasonably objected. If at the Renewal Deadline the Operating Partnership is not eligible to file an automatic shelf registration statement, the Operating Partnership will, if it has not already done so, (i) promptly notify you, (ii) promptly file, if it has not already done so, a new registration statement or post-effective amendment on the proper form relating to such Notes, in a form to which you shall not have reasonably objected, (iii) use its commercially reasonable efforts to cause such registration statement or post-effective amendment to be declared effective within 180 days after that date and (iv) promptly notify you of such event and make every reasonable effort effectiveness. References herein to obtain the withdrawal of “Registration Statement” shall include such order at automatic shelf registration statement or such new registration statement or post-effective amendment, as the earliest possible timecase may be.
(c) The Company will comply with all requirements imposed upon it by the Securities ActIf, the 1933 Act Rules and Regulations, the Exchange Act and the Exchange Act Rules and Regulations as from at any time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus. If during such period where when a prospectus relating to the Shares Notes is required to be delivered (or but for the exception afforded by Rule 172 of the 1933 Act Regulations (“Rule 172”) would be required to be delivered) under the Act or such date which is 90 days after the Closing Date, whichever is later1933 Act, any event or development occurs as a result of which, in the opinion of Underwriter's counselcounsel for the Underwriters or for the Operating Partnership, the Registration Statement contains an or the Prospectus would include any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading misleading, or if it shall be necessary, in the opinion of counsel for the Underwriters or for the Operating Partnership, to amend the Registration Statement or amend or supplement the Prospectus to comply with the 1933 Act or the Prospectus 1933 Act Regulations or to file a new registration statement relating to the Notes, the Operating Partnership and the Company will promptly (1) notify the Representatives of any such event or development, (2) prepare and file with the Commission, subject to Section 3(a) hereof, such amendment, supplement or new registration statement which will correct such statement or omission, effect such compliance or satisfy such filing requirement, (3) use their commercially reasonable efforts to have any such amendment to the Registration Statement or new registration statement declared effective as then soon as possible (if not an automatic shelf registration statement) and (4) supply any amended or supplemented Prospectus to the Underwriters in such quantities as they may reasonably request. If, at any time after the date hereof, an event or development occurs as a result of which, in the opinion of counsel for the Underwriters or for the Operating Partnership, the Disclosure Package contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if during such period it is necessary to amend or supplement the Registration Statement or Prospectus to comply with the Securities Act, the Company will promptly notify the Underwriter and will amend or supplement the Registration Statement or Prospectus (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(d) To furnish to you, without charge, (i) three conformed copies of the Registration Statement (including exhibits thereto) and to furnish to you in New York City, without charge, prior to 10:00 A.M. Memphis, Tennessee time on the business day next succeeding the date of this Agreement and during the period mentioned in paragraph (a) above, as many copies of the Prospectus and any supplements and amendments thereto or to the Registration Statement as you may reasonably request, and (ii) such number of copies of the Incorporated Documents, including exhibits, as you may reasonably request.
(e) If, during such period after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriter the Prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when existing at the Prospectus time it is delivered to a purchaserused, not misleading, the Operating Partnership and the Company promptly will (1) notify the Representatives of any such event or ifdevelopment, (2) prepare, subject to Section 3(a), an amendment or supplement to the Disclosure Package to eliminate or correct such untrue statement or omission and (3) supply any amended or supplemented Disclosure Package to the Underwriters in such quantities as they may reasonably request. If at any time following the 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, in the opinion of counsel for the UnderwriterUnderwriters or for Operating Partnership, it is necessary conflicted or would conflict with the information contained in the Registration Statement (or any other registration statement relating to amend the Notes), the Statutory Prospectus or supplement the Prospectus or included or would include an untrue statement of a material fact or omitted or would omit to comply with applicable law, forthwith state a material fact necessary in order to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Shares may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that make the statements in the Prospectus as so amended or supplemented will nottherein, in the light of the circumstances when prevailing at that subsequent time, not misleading, the Operating Partnership and the Company will promptly notify the Underwriters 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. The Underwriters’ delivery of any such amendment or supplement shall not constitute a waiver of any of the conditions in Section 5 hereof.
(d) The Operating Partnership will prepare a final term sheet containing only a description of the Notes, in a form approved by the Underwriters and attached as Exhibit D hereto, and will file such term sheet pursuant to Rule 433(d) under the Securities Act within the time required by such rule (such term sheet, the “Final Term Sheet”). Any such Final Term Sheet is delivered an Issuer Free Writing Prospectus for purposes of this Agreement.
(e) The Operating Partnership and the Company agree that, unless it has or shall have obtained the prior written consent of the Underwriters, it has not made and will not make any offer relating to the Notes that would constitute an “issuer free writing prospectus” as defined in Rule 433, or that would otherwise constitute a purchaser“free writing prospectus” (as defined in Rule 405), required to be misleading filed by the Company or so the Operating Partnership with the Commission or retained by the Company or the Operating Partnership under Rule 433, other than the Issuer Free Writing Prospectuses, if any, identified on Schedule II; provided that the prior written consent of the Underwriters shall be deemed to have been given in respect of the Issuer Free Writing Prospectuses included in Schedule II hereto and any electronic road show. Any such free writing prospectus consented to by the Underwriters is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Operating Partnership agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping. The Operating Partnership will furnish to the Underwriters, without charge, copies of any such documents a reasonable amount of time prior to such proposed filing or use, as amended the case may be, and will not file or supplemented, will comply with law. In use any such documents to which the event that Underwriters or counsel for the Company and you agree that the Prospectus should be amended or supplemented, the Company, if requested by you, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplementUnderwriters shall reasonably object.
(f) To endeavor The Company and the Operating Partnership have furnished or will furnish to qualify each Underwriter, without charge, as many signed and conformed copies of the Shares for offer Registration Statement as originally filed and sale under of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) as such Underwriter reasonably requests. The Registration Statement and each amendment thereto furnished to the securities or Blue Sky laws of such jurisdictions as you shall reasonably request.Underwriters will be identical to any electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(g) The Company and the Operating Partnership will furnish, without charge, to each Underwriter, from time to time during the period when the Prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the 0000 Xxx) is required to be delivered under the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations in connection with sales of the Notes, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to any electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(h) The Operating Partnership will endeavor, in cooperation with the Underwriters, to qualify the Notes 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 reasonably designate; and in each jurisdiction in which the Notes have been so qualified, the Operating Partnership and 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 Notes; provided, however, that neither the Operating Partnership nor the Company shall be obligated to qualify as a foreign corporation or subject itself to general service of process in any jurisdiction where it is not so qualified or so subject.
(i) With respect to each sale of Notes, the Operating Partnership and the Company will each make generally available to its stockholders security holders as soon as practicable, and but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the manner contemplated by provisions of Rule 158 of the 1933 Act Rules and Regulations but Regulations) covering a twelve month period beginning not later than the earlier of the first day of the Operating Partnership’s or Company’s fiscal quarter, respectively, next following the “effective date” (as defined in any eventsuch Rule 158) of the Registration Statement.
(hj) The Company and the Operating Partnership will not at use their commercially reasonable efforts to meet the requirements to qualify as a REIT and a partnership, respectively, under the Code, unless the Company’s board of directors determines that it is no longer in the best interests of the Company to do so.
(k) The Operating Partnership and the Company, during the period when the Prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the 0000 Xxx) is required to be delivered under the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations in connection with sales of the Notes, will file all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time periods prescribed by the 1934 Act and the 1934 Act Regulations.
(l) The Company and the Operating Partnership will not, without the prior written consent of Banc of America Securities LLC and Xxxxx Fargo Securities, LLC, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any time, directly or indirectly, take any action transaction which is designed to, or which might reasonably be expected to, cause result in the disposition during the period described in this subsection (l) (whether by actual disposition or result ineffective economic disposition due to cash settlement or otherwise) by the Company and the Operating Partnership or any affiliate thereof or any person in privity with the Company, Operating Partnership or any affiliate of either of them), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of), or which has constituted establish or which might reasonably be expected to constitute, increase a put equivalent position or liquidate or decrease a call equivalent position within the stabilization meaning of Section 16 of the price of its capital stock to facilitate the sale or resale of Exchange Act, any other debt securities of the SharesOperating Partnership or the Company or any securities convertible into or exercisable or exchangeable for such debt securities, or publicly announce an intention to effect any such transaction, for a period beginning at the Execution Time and ending on the Closing Date.
(im) The Company will use the net proceeds received by it from the each sale of the Shares Notes in the manner specified set forth in the Disclosure Package and the Prospectus under the caption "“Use of Proceeds."
(j) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar (which may be the same entity as the transfer agent) for its Common Stock.
(k) The Company will use its best efforts to maintain the listing of the Shares on the NYSE.
(l) The Company will use its best efforts (i) to meet the requirements to qualify as a real estate investment trust under the Code and (ii) to cause each of its Subsidiaries that is organized as a partnership to be treated as a partnership for federal income tax purposes.
(m) The Company will comply with all of the provisions of any undertakings in the Registration Statement.”
(n) The Company will engage and maintain, at its expense, a Trustee for the Notes.
(o) In respect of the offering of the Notes, the Operating Partnership will (i) execute a supplemental indenture designating the series of debt securities to be offered and its Subsidiaries will conduct their affairs related terms and provisions in such a manner so as to ensure that neither accordance with the Company nor any Subsidiary will be an "investment company" or an entity "controlled" by an investment company within the meaning provisions of the 1940 Indenture and (ii) cause the Indenture to be or remain qualified under the 1939 Act.
Appears in 1 contract
Samples: Underwriting Agreement (Tanger Properties LTD Partnership /Nc/)
Covenants of the Company and the Operating Partnership. In further consideration of the agreements of the Underwriter herein contained, the The Company and the Operating Partnership jointly and severally covenant and agree with each Underwriter as followsthe Underwriters that:
11 12 (a) The Company will cause the Prospectus Supplement to be filed as required notify you immediately (and, if requested by Section 1(ayou, will confirm such notice in writing)
(i) hereof (but only if the Underwriter or its 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 Underwriter promptly of such filing. During the period in which a prospectus relating to the Shares is required to be delivered under the Act or such date which is 90 days after the Closing Date, whichever is later, the Company will notify the Underwriter promptly of the time when any subsequent post-effective amendment to the Registration Statement has become effective or any subsequent supplement to the Prospectus has been filedbecomes effective, or (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information; , (iii) of the Company will prepare and file with mailing or the Commission, promptly upon the Underwriter's request, any amendments or supplements delivery to the Registration Statement or Prospectus that, in the Underwriter's opinion, may be necessary or advisable in connection with the Underwriter's distribution Commission for filing of the Shares; and the Company will file no Prospectus or any amendment of or supplement to the Registration Statement or the Prospectus (other than any prospectus supplement relating to the offering of other securities registered under the Registration Statement or any document to be filed pursuant to the Exchange Act during any period when the Prospectus is required to be filed delivered under the Exchange Act that upon filing is deemed to be incorporated Securities Act, (iv) of the issuance by reference therein) to which the Underwriter or its counsel shall reasonably object by notice to the Company after having been furnished a copy a reasonable time prior to the filing.
(b) If at any time the Commission shall issue of any stop order suspending the effectiveness of the Registration StatementStatement or any post-effective amendment thereto or of the initiation, or the threatening, of any proceedings therefor, (v) of the receipt of any comments or inquiries from the Commission, and (vi) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for that purpose. If the Commission shall propose or enter a stop order at any time, the Company will immediately notify you of such event and make every reasonable effort to prevent the issuance of any such stop order and, if issued, to obtain the withdrawal lifting of such order at the earliest possible time.
(c) as soon as possible. The Company will comply with all requirements imposed upon it not file any post-effective amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Shares which differs from the prospectus filed with the Commission pursuant to Rule 424(b) of the Securities Act, the 1933 Act Rules and Regulations, the Exchange Act and the Exchange Act Rules and Regulations as from time to time in force, so far as necessary to permit the continuance of sales of, whether or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus. If during not such period where a revised prospectus relating to the Shares is required to be delivered under the Act or such date which is 90 days after the Closing Date, whichever is later, any event occurs as a result of which, in the opinion of Underwriter's counsel, the Registration Statement contains an untrue statement of a material fact or omits filed pursuant to state a material fact required to be stated therein or necessary to make the statements therein not misleading or the Prospectus as then amended or supplemented contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light Rule 424(b) of the circumstances under Securities Act Regulations) to which they were madethe Representatives or Underwriters' Counsel (as hereinafter defined) shall reasonably object, not misleading, or if during will furnish the Representatives with copies of any such period it is necessary to amend amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the Registration Statement or Prospectus to comply with the Securities Actcase may be, the Company will promptly notify the Underwriter and will amend not file any such amendment or supplement or use any such prospectus to which the Registration Statement Representatives or Prospectus (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(d) To furnish to you, without charge, (i) three conformed copies of the Registration Statement (including exhibits thereto) and to furnish to you in New York City, without charge, prior to 10:00 A.M. Memphis, Tennessee time on the business day next succeeding the date of this Agreement and during the period mentioned in paragraph (a) above, as many copies of the Prospectus and any supplements and amendments thereto or to the Registration Statement as you may reasonably request, and (ii) such number of copies of the Incorporated Documents, including exhibits, as you may reasonably request.
(e) If, during such period after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriter the Prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriter, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Shares may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with law. In the event that the Company and you agree that the Prospectus should be amended or supplemented, the Company, if requested by you, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplement.
(f) To endeavor to qualify the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as you Underwriters shall reasonably requestobject.
(g) The Company will make generally available to its stockholders as soon as practicable, and in the manner contemplated by Rule 158 of the 1933 Act Rules and Regulations but in any event
(h) 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, the stabilization of the price of its capital stock to facilitate the sale or resale of any of the Shares.
(i) The Company will use the net proceeds received from the sale of the Shares in the manner specified in the Prospectus under the caption "Use of Proceeds."
(j) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar (which may be the same entity as the transfer agent) for its Common Stock.
(k) The Company will use its best efforts to maintain the listing of the Shares on the NYSE.
(l) The Company will use its best efforts (i) to meet the requirements to qualify as a real estate investment trust under the Code and (ii) to cause each of its Subsidiaries that is organized as a partnership to be treated as a partnership for federal income tax purposes.
(m) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(n) The Company and its Subsidiaries will conduct their affairs in such a manner so as to ensure that neither the Company nor any Subsidiary will be an "investment company" or an entity "controlled" by an investment company within the meaning of the 1940 Act.
Appears in 1 contract
Samples: Underwriting Agreement (Glenborough Realty Trust Inc)
Covenants of the Company and the Operating Partnership. In further consideration Each of the agreements of the Underwriter herein contained, the Company and the Operating Partnership covenant Partnership, jointly and severally, covenants with each you, and with the Underwriter participating in the offering of the Shares, as follows:
(a) The Company will comply, subject to the remainder of this clause (a), with the requirements of Rule 430B. Prior to the termination of the offering of the Shares, the Company will not use or file any amendment to the Registration Statement or amendment or supplement to the Disclosure Package or the Prospectus or any new registration statement relating to the Shares unless the Company has furnished you a copy for your review prior to filing and will not file or use any such proposed amendment, supplement or new registration statement to which you reasonably object. The Company has given the Underwriter notice of any filings made pursuant to the 1934 Act or 1934 Act Regulations within 48 hours prior to the Applicable Time. The Company will cause the Prospectus Supplement Prospectus, properly completed, and any supplement thereto to be filed as in a form to which the Underwriter shall not have reasonably objected with the Commission pursuant to the applicable paragraph of 424(b) within the time period prescribed and will provide evidence satisfactory to the Underwriter of such timely filing. The Company will promptly advise the Underwriter (a) of the effectiveness of any amendment to the Registration Statement or any new registration statement relating to the Shares, (b) 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, (c) 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, (d) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information relating thereto, (e) of the issuance of any stop order by the Commission suspending the effectiveness of the Registration Statement, or notice objecting to its use pursuant to Rule 401(g)(2), or any order preventing or suspending the use of any preliminary prospectus or the Prospectus or the institution or threatening of any proceedings for that purpose or of any examination pursuant to Section 8(d) or 8(e) of the 1933 Act concerning the Registration Statement, (f) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Shares, and (g) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its commercially reasonable efforts to prevent the issuance of any such order or the suspension of any such qualification, and, if issued, to obtain promptly, the withdrawal thereof. The Company shall pay the required Commission filing fees relating to the Shares within the time required by Section 1(aRule 456(b)(1)(i) hereof (but only if of the Underwriter or its counsel have not reasonably objected thereto by notice 1933 Act Regulations without regard to the Company after having been furnished proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a copy post-effective amendment to the Registration Statement or on the cover page of a reasonable time prospectus filed pursuant to Rule 424(b)).
(b) If, immediately prior to filingthe third anniversary of the initial effective date of the Registration Statement (the “Renewal Deadline”), any Shares remain unsold by the Underwriter, the Company will, prior to that date, (i) promptly notify you and will (ii) promptly file, if it has not already done so and is eligible to do so, an automatic shelf registration statement relating to the Shares, in a form to which you shall not have reasonably objected. If at the Renewal Deadline the Company is not eligible to file an automatic shelf registration statement, the Company will, if it has not already done so, (i) promptly notify you, (ii) promptly file, if it has not already done so, a new registration statement or post-effective amendment on the Underwriter proper form relating to such Shares, in a form to which you shall not have reasonably objected, (iii) use its commercially reasonable efforts to cause such registration statement or post-effective amendment to be declared effective within 180 days after that date and (iv) promptly notify you of such filingeffectiveness. During References herein to the period in which “Registration Statement” shall include such automatic shelf registration statement or such new registration statement or post-effective amendment, as the case may be.
(c) If, at any time when a prospectus relating to the Shares is required to be delivered under (or but for the Act or such date which is 90 days after the Closing Date, whichever is later, the Company will notify the Underwriter promptly exception afforded by Rule 172 of the time when any subsequent amendment to the Registration Statement has become effective or any subsequent supplement to the Prospectus has been filed, or of any request by the Commission for any amendment or supplement to the Registration Statement or Prospectus or for additional information; the Company will prepare and file with the Commission, promptly upon the Underwriter's request, any amendments or supplements to the Registration Statement or Prospectus that, in the Underwriter's opinion, may 1933 Act Regulations (“Rule 172”) would be necessary or advisable in connection with the Underwriter's distribution of the Shares; and the Company will file no amendment or supplement to the Registration Statement or Prospectus (other than any prospectus supplement relating to the offering of other securities registered under the Registration Statement or any document required to be filed delivered) under the Exchange Act that upon filing is deemed to be incorporated by reference therein) to which the Underwriter or its counsel shall reasonably object by notice to the Company after having been furnished a copy a reasonable time prior to the filing.
(b) If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will immediately notify you of such event and make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
(c) The Company will comply with all requirements imposed upon it by the Securities 1933 Act, the 1933 Act Rules and Regulations, the Exchange Act and the Exchange Act Rules and Regulations as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus. If during such period where a prospectus relating to the Shares is required to be delivered under the Act or such date which is 90 days after the Closing Date, whichever is later, any event or development occurs as a result of which, in the opinion of Underwriter's counselcounsel for the Underwriter or for the Company, the Registration Statement contains an or the Prospectus would include any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading misleading, or if it shall be necessary, in the opinion of counsel for the Underwriter or for the Company, to amend the Registration Statement or amend or supplement the Prospectus to comply with the 1933 Act or the Prospectus 1933 Act Regulations or to file a new registration statement relating to the Shares, the Company will promptly (1) notify the Underwriter of any such event or development, (2) prepare and file with the Commission, subject to Section 3(a) hereof, such amendment, supplement or new registration statement which will correct such statement or omission, effect such compliance or satisfy such filing requirement, (3) use its commercially reasonable efforts to have any such amendment to the Registration Statement or new registration statement declared effective as then soon as possible (if not an automatic shelf registration statement) and (4) supply any amended or supplemented Prospectus to the Underwriter in such quantities as it may reasonably request. If, at any time after the date hereof, an event or development occurs as a result of which, in the opinion of counsel for the Underwriter or for the Company, the Disclosure Package contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if during such period it is necessary to amend or supplement the Registration Statement or Prospectus to comply with the Securities Act, the Company will promptly notify the Underwriter and will amend or supplement the Registration Statement or Prospectus (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(d) To furnish to you, without charge, (i) three conformed copies of the Registration Statement (including exhibits thereto) and to furnish to you in New York City, without charge, prior to 10:00 A.M. Memphis, Tennessee time on the business day next succeeding the date of this Agreement and during the period mentioned in paragraph (a) above, as many copies of the Prospectus and any supplements and amendments thereto or to the Registration Statement as you may reasonably request, and (ii) such number of copies of the Incorporated Documents, including exhibits, as you may reasonably request.
(e) If, during such period after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriter the Prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when existing at the Prospectus time it is delivered to a purchaserused, not misleading, the Company promptly will (1) notify the Underwriter of any such event or ifdevelopment, (2) prepare, subject to Section 3(a), an amendment or supplement to the Disclosure Package to eliminate or correct such untrue statement or omission and (3) supply any amended or supplemented Disclosure Package to the Underwriter in such quantities as it may reasonably request. If at any time following the 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, in the opinion of counsel for the UnderwriterUnderwriter or for the Company, it is necessary conflicted or would conflict with the information contained in the Registration Statement (or any other registration statement relating to amend the Shares), the Statutory Prospectus or supplement the Prospectus or included or would include an untrue statement of a material fact or omitted or would omit to comply with applicable law, forthwith state a material fact necessary in order to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Shares may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that make the statements in the Prospectus as so amended or supplemented will nottherein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company will promptly notify the Underwriter 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. The Underwriter's delivery of any such amendment or supplement shall not constitute a waiver of any of the conditions in Section 5 hereof.
(d) The Company agrees that, unless it has or shall have obtained the prior written consent of the Underwriter, it has not made and will not make any offer relating to the Shares 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 by the Company with the Commission or retained by the Company under Rule 433, other than the Issuer Free Writing Prospectuses, if any, identified on Schedule I; provided, however that the prior written consent of the Underwriter shall be deemed to have been given in respect of the Issuer Free Writing Prospectuses included in Schedule I hereto and any electronic road show. Any such free writing prospectus consented to by the Underwriter is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping. The Company will furnish to the Underwriter, without charge, copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such documents to which the Underwriter or counsel for the Underwriter shall reasonably object.
(e) The Company has furnished or will furnish to the Underwriter, without charge, as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) as the Underwriter reasonably requests. The Registration Statement and each amendment thereto furnished to the Underwriter will be identical to any electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S‑T.
(f) The Company will furnish, without charge, to the Underwriter, from time to time during the period when the Prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the 0000 Xxx) is required to be delivered to a purchaserunder the 1933 Act, be misleading the 1933 Act Regulations, the 1934 Act or so that the Prospectus1934 Act Regulations in connection with sales of the Shares, such number of copies of the Prospectus (as amended or supplemented, will comply with law. In ) as the event that Underwriter may reasonably request for the Company and you agree that purposes contemplated by the Prospectus should be amended or supplemented1933 Act, the Company1933 Act Regulations, if requested the 1934 Act or the 1934 Act Regulations. The Prospectus and any amendments or supplements thereto furnished to the Underwriter will be identical to any electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by you, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplement.
(f) To endeavor to qualify the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request.Regulation S‑T.
(g) The Company will endeavor, in cooperation with the Underwriter, to qualify the Shares 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 Underwriter may reasonably designate; and in each jurisdiction in which the Shares have been so qualified, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Shares; provided, however, that the Company shall not be obligated to qualify as a foreign corporation or subject itself to general service of process in any jurisdiction where it is not so qualified or so subject.
(h) With respect to each sale of Shares, the Company will make generally available to its stockholders security holders as soon as practicable, and but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the manner contemplated by provisions of Rule 158 of the 1933 Act Rules and Regulations but Regulations) covering a twelve month period beginning not later than the earlier of the first day of the Company's fiscal quarter, respectively, next following the “effective date” (as defined in any eventsuch Rule 158) of the Registration Statement.
(hi) The Company and the Operating Partnership will not at use their commercially reasonable efforts to meet the requirements to qualify as a REIT and a partnership, respectively, under the Code, unless the Company's board of directors determines that it is no longer in the best interests of the Company to do so.
(j) The Company, during the period when the Prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the 0000 Xxx) is required to be delivered under the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations in connection with sales of the Shares, will file all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time periods prescribed by the 1934 Act and the 1934 Act Regulations.
(k) The Company and the Operating Partnership will not, without the prior written consent of Xxxxxxxxx & Company, Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any time, directly or indirectly, take any action transaction which is designed to, or which might reasonably be expected to, cause result in the disposition during the period described in this subsection (l) (whether by actual disposition or result ineffective economic disposition due to cash settlement or otherwise) by the Company and the Operating Partnership or any affiliate thereof or any person in privity with the Company, Operating Partnership or any affiliate of either of them), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of), or which has constituted establish or which might reasonably be expected increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any capital shares of the Company or any securities convertible into or exercisable or exchangeable for such capital shares, or publicly announce an intention to constituteeffect any such transaction, for a period beginning at the Execution Time and ending 30 days after the date of the Prospectus; provided, however that this Section 3(k) shall not prohibit any issuance of Common Shares (1) as a result of the conversion, exercise or exchange of securities of the Company or the Operating Partnership issued and outstanding as of the Execution Time that are convertible into or exercisable or exchangeable for Common Shares or (2) pursuant to the Company's existing employee benefit plan. In addition, the stabilization Company and the Operating Partnership will use commercially reasonable efforts to prevent the executive officers and directors of the price Company from violating the terms of its capital stock their respective lock-up agreements delivered pursuant to facilitate the sale or resale of any of the SharesSection 5(a) hereof.
(il) The Company will use the net proceeds received by it from the each sale of the Shares in the manner specified set forth in the Disclosure Package and the Prospectus under the caption "“Use of Proceeds."
(j) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar (which may be the same entity as the transfer agent) for its Common Stock.
(k) The Company will use its best efforts to maintain the listing of the Shares on the NYSE.
(l) The Company will use its best efforts (i) to meet the requirements to qualify as a real estate investment trust under the Code and (ii) to cause each of its Subsidiaries that is organized as a partnership to be treated as a partnership for federal income tax purposes.”
(m) The Company will comply with all of engage and maintain, at its expense, a registrar and transfer agent for the provisions of any undertakings in the Registration StatementShares.
(n) The Company and its Subsidiaries will conduct their affairs in such a manner so as Prior to ensure that neither the Closing Date, the Company nor any Subsidiary will shall have completed all required filings with the NYSE and other necessary actions in order to cause the Shares to be an "investment company" or an entity "controlled" by an investment company within listed and admitted and authorized for trading on the meaning NYSE, subject to notice of the 1940 Actissuance.
Appears in 1 contract
Samples: Underwriting Agreement (Tanger Properties LTD Partnership /Nc/)
Covenants of the Company and the Operating Partnership. In further consideration of the agreements of the Underwriter herein contained, the The Company and the Operating Partnership jointly and severally covenant and agree with each Underwriter as followsthe Underwriters that:
(a) The Company will cause the Prospectus Supplement to be filed as required by Section 1(a) hereof (but only if the Underwriter or its 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 Underwriter promptly of Underwriters immediately (and, if requested by the Underwriters, will confirm such filing. During the period notice in which a prospectus relating to the Shares is required to be delivered under the Act or such date which is 90 days after the Closing Date, whichever is later, the Company will notify the Underwriter promptly of the time writing) (i) when any subsequent post-effective amendment to the Registration Statement has become effective or any subsequent supplement to the Prospectus has been filedStatements becomes effective, or (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement Statements or the Prospectus or for any additional information; , (iii) of the Company will prepare and file with mailing or the Commission, promptly upon the Underwriter's request, any amendments or supplements delivery to the Registration Statement or Prospectus that, in the Underwriter's opinion, may be necessary or advisable in connection with the Underwriter's distribution Commission for filing of the Shares; and the Company will file no Prospectus or any amendment of or supplement to the Registration Statement Statements or the Prospectus (other than any prospectus supplement relating to the offering of other securities registered under the Registration Statement or any document to be filed pursuant to the Exchange Act during any period when the Prospectus is required to be filed delivered under the Exchange Act that upon filing is deemed to be incorporated Securities Act, (iv) of the issuance by reference therein) to which the Underwriter or its counsel shall reasonably object by notice to the Company after having been furnished a copy a reasonable time prior to the filing.
(b) If at any time the Commission shall issue of any stop order suspending the effectiveness of either Registration Statement or any post-effective amendment thereto or of the Registration Statementinitiation, or the threatening, of any proceedings therefor, (v) of the receipt of any comments or inquiries from the Commission, and (vi) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for that purpose. If the Commission shall propose or enter a stop order at any time, the Company will immediately notify you of such event and make every reasonable effort to prevent the issuance of any such stop order and, if issued, to obtain the withdrawal lifting of such order at the earliest possible time.
(c) as soon as possible. The Company will comply with all requirements imposed upon it not file any post-effective amendment to the Registration Statements or any amendment of or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Shares which differs from the prospectus filed with the Commission pursuant to Rule 424(b) of the Securities Act, the 1933 Act Rules and Regulations, the Exchange Act and the Exchange Act Rules and Regulations as from time to time in force, so far as necessary to permit the continuance of sales of, whether or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus. If during not such period where a revised prospectus relating to the Shares is required to be delivered under filed pursuant to Rule 424(b) of the Securities Act Regulations) to which the Underwriters or Underwriters' Counsel (as hereinafter defined) shall reasonably object, will furnish the Underwriters with copies of any such date amendment or supplement a reasonable amount of time prior to 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 is 90 days after the Closing Date, whichever is later, Underwriters or counsel for the Underwriters shall reasonably object.
(b) If any event occurs shall occur as a result of whichwhich the Prospectus would, in the opinion judgment of Underwriter's counsel, the Registration Statement contains Underwriters or the Company include an untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading or the Prospectus as then amended or supplemented contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if during such period it is shall be necessary at any time to amend or supplement the Prospectus or either Registration Statement or Prospectus to comply with the Securities ActAct or the Securities Act Regulations, or to file under the Exchange Act so as to comply therewith any document incorporated by reference in the Registration Statements or the Prospectus or in any amendment thereof or supplement thereto, the Company will promptly notify the Underwriter Underwriters promptly and will amend prepare and file with the Commission an appropriate amendment or supplement (in form and substance satisfactory to the Registration Statement or Prospectus (at the expense of the CompanyUnderwriters) so as to which will correct such statement or omission or which will effect such compliance.
(dc) To furnish The Company has delivered to you, without charge, (i) three conformed the Underwriters four signed copies of the Second Registration Statement (as originally filed, including exhibits and all documents incorporated or deemed to be incorporated by reference therein and all amendments thereto) , and the Company will promptly deliver to furnish each of the Underwriters, from time to you in New York City, without charge, prior to 10:00 A.M. Memphis, Tennessee time on the business day next succeeding the date of this Agreement and during the period mentioned in paragraph (a) above, as many copies of that the Prospectus and any supplements and amendments thereto is required to be delivered under the Securities Act or to the Registration Statement as you may reasonably requestExchange Act, and (ii) such number of copies of the Incorporated DocumentsProspectus and the Registration Statements, including exhibitsand all amendments of and supplements to such documents, if any, as you the Underwriters may reasonably request.
(ed) If, during such period after the first date of the public offering of the Shares as The Company will endeavor in the opinion of counsel for the Underwriter the Prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements thereingood faith, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriter, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file cooperation with the Commission and furnishUnderwriters, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Shares may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with law. In the event that the Company and you agree that the Prospectus should be amended or supplemented, the Company, if requested by you, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplement.
(f) To endeavor to qualify the Shares for offer offering and sale under the securities laws relating to the offering or Blue Sky laws sale of the Shares of such jurisdictions as you the Underwriters may designate and to maintain such qualification in effect for so long as required for the distribution thereof; except that in no event shall reasonably requestthe Company be obligated in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process.
(ge) The Company will make generally available (within the meaning of Section 11(a) of the Securities Act) to its stockholders security holders and to the Underwriters as soon as practicable, and but not later than 45 days after the end of its fiscal quarter in which the manner contemplated by first anniversary date of the effective date of the Second Registration Statement occurs (or if such fiscal quarter is the Company's fourth fiscal quarter, not later than 90 days after the end of such quarter), an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Rules and Regulations but Regulations) covering a period of at least twelve consecutive months beginning after the effective date of the Second Registration Statement (as defined in any eventRule 158(c) under the Securities Act).
(hf) The During the period of 60 days from the date of the Prospectus, the Company and the Operating Partnership will not at any timenot, directly or indirectlyindirectly without the prior written consent of Bear, take Steaxxx & Xo. Inc., issue, sell, offer or agree to sell, grant any action designed tooption to purchase, or otherwise dispose (or announce any offer, sale, grant of an option to purchase or other disposition) of, any shares of Common Stock (or any securities convertible into, exchangeable or exercisable for shares of Common Stock), other than (i) the Company's sale of Shares hereunder and the Company's issuance of Common Stock upon the exercise of stock options outstanding at the date of the Prospectus, (ii) the exchange of outstanding units in the Operating Partnership for Common Stock, (iii) the issuance, in connection with bona fide acquisitions of real property or interests therein, to the sellers of such property, of shares of Common Stock or units in the Operating Partnership such that the aggregate number of shares of Common Stock issued, or which might reasonably may be expected toissued upon conversion or exchange of such units, cause or result inwill not exceed 3,500,000 (the "Permitted Securities"); provided, or which has constituted or which might reasonably be expected however, that as a precondition to constituteany such issuance, the stabilization Company or the Operating Partnership, as the case may be, shall obtain the undertaking of the price of its capital stock to facilitate the sale or resale of each such holder that it will not engage in any of the Shares.
(i) The Company will use aforementioned transactions during the net proceeds received period of 60 days from the sale date of the Shares in the manner specified in the Prospectus under the caption "Use of Proceeds."
(j) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar (which may be the same entity as the transfer agent) for its Common Stock.
(k) The Company will use its best efforts to maintain the listing of the Shares and place on the NYSE.
(l) The Company will use its best efforts (i) to meet the requirements to qualify as a real estate investment trust under the Code and (ii) to cause each of its Subsidiaries that is organized as a partnership to be treated as a partnership for federal income tax purposes.
(m) The Company will comply with all of the provisions face of any undertakings in the Registration Statementsuch Permitted Security a legend to that effect.
(n) The Company and its Subsidiaries will conduct their affairs in such a manner so as to ensure that neither the Company nor any Subsidiary will be an "investment company" or an entity "controlled" by an investment company within the meaning of the 1940 Act.
Appears in 1 contract
Samples: Underwriting Agreement (Glenborough Realty Trust Inc)
Covenants of the Company and the Operating Partnership. In further consideration of the agreements of the Underwriter herein contained, the The Company and the Operating Partnership covenant and agree with each Underwriter as followsyou that:
(a) The Company will cause and the Prospectus Supplement to be filed Operating Partnership shall prepare the Exchange Offer Material and file such Exchange Offer Material with the Commission following its preparation as required by Section 1(a) hereof (but only if the Underwriter or its counsel have not reasonably objected thereto by notice to Act, the Exchange Act and the rules and regulations thereunder. Neither the Company after having been furnished a copy nor the Operating Partner will use, file, amend or supplement the Exchange Offer Material, or prepare or approve any Rule 165 Material for use in connection with the Exchange Offer, without first submitting copies of such Exchange Offer Material or Rule 165 Material to you a reasonable time prior to using, filing) , amending or supplementing such Exchange Offer Material and will notify giving reasonable consideration to you and your counsel’s comments. The Company and the Underwriter Operating Partnership shall advise you, promptly of such filing. During the period in which a prospectus relating to the Shares is required to be delivered under the Act or such date which is 90 days after the Closing Datethey receive notice thereof, whichever is later, the Company will notify the Underwriter promptly of the time when any subsequent amendment to the Initial Registration Statement or the Registration Statement has become been filed or becomes effective or when any subsequent supplement to the Preliminary Prospectus or the Prospectus, any amended Preliminary Prospectus or Prospectus, the Schedule TO or any amended or additional Exchange Offer Material has been filedfiled and to furnish you with copies thereof. Each of the Company and the Operating Partnership agrees to file promptly all reports and any definitive proxy or information statements required to be filed by the Company and/or the Operating Partnership with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and until the date on which the Exchange Offer expires; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Initial Registration Statement, Registration Statement, Preliminary Prospectus or Prospectus or of any of the Exchange Offer Material or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act, or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threat of any proceeding for any such purpose, or of any request by the Commission for any amendment the amending or supplement to supplementing of the Registration Statement or Prospectus Exchange Offer Material or for additional information; the Company will prepare and file with the Commission, promptly upon the Underwriter's request, any amendments or supplements to the Registration Statement or Prospectus thatand, in the Underwriter's opinion, may be necessary or advisable in connection with the Underwriter's distribution event of the Shares; and issuance of any stop order or of any order preventing or suspending the Company will file no amendment or supplement to the use of any Initial Registration Statement Statement, Registration Statement, Preliminary Prospectus or Prospectus (other than or suspending any prospectus supplement relating such qualification, promptly to use its reasonable efforts to prevent the offering issuance of other securities registered under such stop order and to obtain as soon as possible 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) to which the Underwriter or its counsel shall reasonably object by notice to the Company after having been furnished a copy a reasonable time prior to the filingwithdrawal of such order, if issued.
(b) If at any time the Commission shall issue any stop order suspending the effectiveness Upon commencement of the Registration StatementExchange Offer, the Company Operating Partnership will immediately notify you cause to be mailed to each registered holder of such event any Convertible Notes, as soon as practicable, a copy of the Preliminary Prospectus as then amended or supplemented and make every reasonable effort to obtain the withdrawal Letter of such order at the earliest possible timeTransmittal, together with other appropriate Exchange Offer Material.
(c) The Company will comply and the Operating Partnership agree to furnish you with all requirements imposed upon it copies of the Exchange Offer Material in such quantities as you may reasonably request for use by you in connection with the Exchange Offer.
(d) If the delivery of a prospectus is required by the Securities Act, the 1933 Act Rules and Regulations, or the Exchange Act and in connection with the Exchange Act Rules Offer and Regulations as from if at such time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus. If during such period where a prospectus relating to the Shares is required to be delivered under the Act or such date which is 90 days after the Closing Date, whichever is later, any event occurs will have occurred as a result of which, in which the opinion of Underwriter's counsel, the Registration Statement contains Prospectus would include an untrue statement of a material fact or omits omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or the Prospectus as then amended or supplemented contains an untrue statement of a material fact or omits to state a any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleadingmisleading or necessary to correct any material statement in any earlier communication with respect to the Exchange Offer, or or, if during such period for any other reason it is will be necessary at any time to amend or supplement the Registration Statement Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to file with the Company Commission such amendment, supplement or document and to notify you thereof and to prepare and furnish without charge to you, as many copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will promptly notify the Underwriter and will amend or supplement the Registration Statement or Prospectus (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(de) To furnish The Company will promptly from time to you, without charge, (i) three conformed copies of the Registration Statement (including exhibits thereto) and to furnish to you in New York City, without charge, prior to 10:00 A.M. Memphis, Tennessee time on the business day next succeeding the date of this Agreement and during the period mentioned in paragraph (a) above, as many copies of the Prospectus and any supplements and amendments thereto or to the Registration Statement take such action as you may reasonably request, and (ii) such number of copies of the Incorporated Documents, including exhibits, as you may reasonably request.
(e) If, during such period after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriter the Prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriter, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Shares may have been sold by you on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with law. In the event that the Company and you agree that the Prospectus should be amended or supplemented, the Company, if requested by you, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplement.
(f) To endeavor request to qualify the Shares for offer offering and sale under the securities or Blue Sky laws of such jurisdictions as you shall may reasonably requestrequest and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for so long as may be necessary to complete the distribution of the Shares; provided that in connection therewith the Company will not be required to qualify as a foreign corporation, as a dealer in securities, file a general consent to service of process in any jurisdiction or take any action that would subject it to taxation in such jurisdiction.
(f) The Company and the Operating Partnership agree to furnish to you, to the extent the same is available to the Company and the Operating Partnership, cards or lists or copies thereof showing the names and addresses of, and principal amounts of Convertible Notes held by, the holders of Convertible Notes as of a recent date, and will use its reasonable efforts to advise you from day to day during the period of the Exchange Offer as to any transfers of record of Convertible Notes. You agree to use such information only in connection with the Exchange Offer and not to furnish such information to any other person except in connection with the Exchange Offer.
(g) The Company and the Operating Partnership have appointed and authorize you to communicate with U.S. Bank, N.A., in its capacity as exchange agent (the “Exchange Agent”), in connection with the Exchange Offer. The Company and the Operating Partnership will arrange for the Exchange Agent (i) to inform you in writing or by email during each business day during the period of the Exchange Offer as to such matters relating to the Exchange Offer as you may reasonably request and (ii) without limiting the foregoing, to promptly notify you during the period of the Exchange Offer of all transfers of Convertible Notes of which the Exchange Agent is aware, such notification consisting of the name and address of the transferor and transferee of any Convertible Notes and the date of such transfer, to the extent such information is known to the Exchange Agent.
(h) As soon as practicable, but not later than the Availability Date (as defined below), the Company will make generally available to its stockholders as soon as practicable, and in an earnings statement covering a period of at least 12 months beginning after the manner contemplated by Rule 158 effective date of the 1933 Act Rules and Regulations but Registration Statement (as defined in any eventRule 158(c) under the Act) which will satisfy the provisions of Section 11(a) of the Act. For the purpose of the preceding sentence, “Availability Date” means the 40th day after the end of the fourth fiscal quarter following the fiscal quarter that includes such effective date, except that, if such fourth fiscal quarter is the last quarter of the Company’s fiscal year, “Availability Date” means the 60th day after the end of such fourth fiscal quarter.
(hi) The Company and the Operating Partnership will advise you promptly of (i) the occurrence of any event which could cause the Operating Partnership to withdraw, rescind, terminate or modify the Exchange Offer or to exercise any right not to accept Convertible Notes under the Exchange Offer, (ii) the occurrence of any event, or the discovery of any fact, the occurrence or existence of which it believes would require the making of any change in any of the Exchange Offer Material or Rule 165 Material then being used or would cause any representation or warranty contained in this Agreement to be untrue or inaccurate in any material respect, (iii) the time when any Initial Registration Statement or the Registration Statement, or any amendment thereto, has been filed or becomes effective, or any amendment or supplement to the Preliminary Prospectus or the Prospectus, the Schedule TO or any amended or additional Exchange Offer Material or Rule 165 Material shall have been filed, (iv) any proposal by the Company or the Operating Partnership or requirement to make, amend or supplement any Exchange Offer Material or Rule 165 Material or any filing in connection with the Exchange Offer pursuant to the Act, the Exchange Act or the rules and regulations promulgated by the Commission thereunder or any other applicable law, rule or regulation, (v) the issuance by the Commission of any comment or order or the taking of any other action concerning the Exchange Offer (and, if in writing, will furnish you with a copy thereof), (vi) any material developments in connection with the Exchange Offer, including, without limitation, the commencement of any litigation or administrative action or claim concerning the Exchange Offer and (vii) any other information relating to the Exchange Offer, the Exchange Offer Material, Rule 165 Material or this Agreement which you may from time to time reasonably request.
(j) Each of the Company and the Operating Partnership agrees that it will not at make any timewritten communications in connection with or related to the Exchange Offer that could constitute a “prospectus” for the purposes of Section 5(b)(1) of the Act except Rule 165 Material and to provide you with a copy of all Rule 165 Material promptly after filing of the same with the Commission.
(k) During the period beginning from the date hereof and continuing to and including the date 30 days after the date of the expiration of the Exchange Offer, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder, of any securities of the Company that are substantially similar to the Shares, including but not limited to any options or warrants to purchase Common Shares or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Shares or any such substantially similar securities (other than pursuant to employee stock option plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement), without the prior consent of Xxxxxxx, Xxxxx & Co.;
(l) None of the Company, the Operating Partnership or any entity controlled, directly or indirectly, take by the Company or the Operating Partnership has taken, or will take, directly or indirectly, any action which is designed to, or which might reasonably be expected to, cause or result in, to or which has constituted or which might reasonably be expected to constitute, the cause or result in stabilization or manipulation of the price of its capital stock any security of the Company or the Operating Partnership to facilitate the sale or resale of any of the SharesExchange Offer.
(im) The Company and the Operating Partnership will use the net proceeds received from the sale of the Shares in the manner specified in the Prospectus under the caption "Use of Proceeds."
(j) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar (which may be the same entity as the transfer agent) for its Common Stock.
(k) The Company will use its their best efforts to maintain the listing of the Shares on the NYSE.
(l) The Company will use its best efforts (i) to meet the requirements to qualify as a real estate investment trust (a “REIT”) and a partnership, respectively, under the Internal Revenue Code and of 1986, as amended (iithe “Code”) to cause each unless otherwise determined by the Company’s board of its Subsidiaries that is organized as a partnership to be treated as a partnership for federal income tax purposesdirectors.
(m) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(n) The Company and its Subsidiaries will conduct their affairs in such a manner so as to ensure that neither the Company nor any Subsidiary will be an "investment company" or an entity "controlled" by an investment company within the meaning of the 1940 Act.
Appears in 1 contract
Samples: Dealer Manager Agreement (Tanger Properties LTD Partnership /Nc/)
Covenants of the Company and the Operating Partnership. In further consideration of the agreements of the Underwriter herein contained, the The Company and the Operating Partnership jointly and severally covenant and agree with each Underwriter as followsthe Underwriters that:
(a) The Company will cause the Prospectus Supplement to be filed as required by Section 1(a) hereof (but only if the Underwriter or its 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 Underwriter promptly of Underwriters immediately (and, if requested by the Underwriters, will confirm such filing. During the period notice in which a prospectus relating to the Shares is required to be delivered under the Act or such date which is 90 days after the Closing Date, whichever is later, the Company will notify the Underwriter promptly of the time writing) (i) when any subsequent post-effective amendment to the Registration Statement has become effective or any subsequent supplement to the Prospectus has been filedStatements becomes effective, or (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement Statements or the Prospectus or for any additional information; , (iii) of the Company will prepare and file with mailing or the Commission, promptly upon the Underwriter's request, any amendments or supplements delivery to the Registration Statement or Prospectus that, in the Underwriter's opinion, may be necessary or advisable in connection with the Underwriter's distribution Commission for filing of the Shares; and the Company will file no Prospectus or any amendment of or supplement to the Registration Statement Statements or the Prospectus (other than any prospectus supplement relating to the offering of other securities registered under the Registration Statement or any document to be filed pursuant to the Exchange Act during any period when the Prospectus is required to be filed delivered under the Exchange Act that upon filing is deemed to be incorporated Securities Act, (iv) of the issuance by reference therein) to which the Underwriter or its counsel shall reasonably object by notice to the Company after having been furnished a copy a reasonable time prior to the filing.
(b) If at any time the Commission shall issue of any stop order suspending the effectiveness of either Registration Statement or any post-effective amendment thereto or of the Registration Statementinitiation, or the threatening, of any proceedings therefor, (v) of the receipt of any comments or inquiries from the Commission, and (vi) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for that purpose. If the Commission shall propose or enter a stop order at any time, the Company will immediately notify you of such event and make every reasonable effort to prevent the issuance of any such stop order and, if issued, to obtain the withdrawal lifting of such order at the earliest possible time.
(c) as soon as possible. The Company will comply with all requirements imposed upon it not file any post-effective amendment to the Registration Statements or any amendment of or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Shares which differs from the prospectus filed with the Commission pursuant to Rule 424(b) of the Securities Act, the 1933 Act Rules and Regulations, the Exchange Act and the Exchange Act Rules and Regulations as from time to time in force, so far as necessary to permit the continuance of sales of, whether or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus. If during not such period where a revised prospectus relating to the Shares is required to be delivered under the Act or such date which is 90 days after the Closing Date, whichever is later, any event occurs as a result of which, in the opinion of Underwriter's counsel, the Registration Statement contains an untrue statement of a material fact or omits filed pursuant to state a material fact required to be stated therein or necessary to make the statements therein not misleading or the Prospectus as then amended or supplemented contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light Rule 424(b) of the circumstances under which they were made, not misleading, or if during such period it is necessary to amend or supplement the Registration Statement or Prospectus to comply with the Securities Act, the Company will promptly notify the Underwriter and will amend or supplement the Registration Statement or Prospectus (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(d) To furnish to you, without charge, (i) three conformed copies of the Registration Statement (including exhibits thereto) and to furnish to you in New York City, without charge, prior to 10:00 A.M. Memphis, Tennessee time on the business day next succeeding the date of this Agreement and during the period mentioned in paragraph (a) above, as many copies of the Prospectus and any supplements and amendments thereto or to the Registration Statement as you may reasonably request, and (ii) such number of copies of the Incorporated Documents, including exhibits, as you may reasonably request.
(e) If, during such period after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriter the Prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriter, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the CompanyAct Regulations) to which Shares may have been sold by you on behalf the Representatives or Underwriters' Counsel shall reasonably object, will furnish the Representatives with copies of the Underwriter and any such amendment or supplement a reasonable amount of time prior to any other dealers upon request, either amendments such proposed filing or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectususe, as amended or supplemented, will comply with law. In the event that the Company and you agree that the Prospectus should be amended or supplemented, the Company, if requested by you, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplement.
(f) To endeavor to qualify the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request.
(g) The Company will make generally available to its stockholders as soon as practicable, and in the manner contemplated by Rule 158 of the 1933 Act Rules and Regulations but in any event
(h) 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, the stabilization of the price of its capital stock to facilitate the sale or resale of any of the Shares.
(i) The Company will use the net proceeds received from the sale of the Shares in the manner specified in the Prospectus under the caption "Use of Proceeds."
(j) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar (which case may be the same entity as the transfer agent) for its Common Stock.
(k) The Company will use its best efforts to maintain the listing of the Shares on the NYSE.
(l) The Company will use its best efforts (i) to meet the requirements to qualify as a real estate investment trust under the Code and (ii) to cause each of its Subsidiaries that is organized as a partnership to be treated as a partnership for federal income tax purposes.
(m) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(n) The Company and its Subsidiaries will conduct their affairs in such a manner so as to ensure that neither the Company nor any Subsidiary will be an "investment company" or an entity "controlled" by an investment company within the meaning of the 1940 Act.be,
Appears in 1 contract
Samples: Underwriting Agreement (Glenborough Realty Trust Inc)
Covenants of the Company and the Operating Partnership. In further consideration of the agreements of the Underwriter herein contained, the The Company and the Operating Partnership jointly and severally covenant and agree with each Underwriter as followsthe Underwriters that:
(a) The Company will cause the Prospectus Supplement to be filed as required by Section 1(a) hereof (but only if the Underwriter or its 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 Underwriter promptly of Underwriters immediately (and, if requested by the Underwriters, will confirm such filing. During the period notice in which a prospectus relating to the Shares is required to be delivered under the Act or such date which is 90 days after the Closing Date, whichever is later, the Company will notify the Underwriter promptly of the time writing) (i) when any subsequent post-effective amendment to the Registration Statement has become effective or any subsequent supplement to the Prospectus has been filedStatements becomes effective, or (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement Statements or the Prospectus or for any additional information; , (iii) of the Company will prepare and file with mailing or the Commission, promptly upon the Underwriter's request, any amendments or supplements delivery to the Registration Statement or Prospectus that, in the Underwriter's opinion, may be necessary or advisable in connection with the Underwriter's distribution Commission for filing of the Shares; and the Company will file no Prospectus or any amendment of or supplement to the Registration Statement Statements or the Prospectus (other than any prospectus supplement relating to the offering of other securities registered under the Registration Statement or any document to be filed pursuant to the Exchange Act during any period when the Prospectus is required to be filed delivered under the Exchange Act that upon filing is deemed to be incorporated Securities Act, (iv) of the issuance by reference therein) to which the Underwriter or its counsel shall reasonably object by notice to the Company after having been furnished a copy a reasonable time prior to the filing.
(b) If at any time the Commission shall issue of any stop order suspending the effectiveness of either Registration Statement or any post-effective amendment thereto or of the Registration Statementinitiation, or the threatening, of any proceedings therefor, (v) of the receipt of any comments or inquiries from the Commission, and (vi) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for that purpose. If the Commission shall propose or enter a stop order at any time, the Company will immediately notify you of such event and make every reasonable effort to prevent the issuance of any such stop order and, if issued, to obtain the withdrawal lifting of such order at the earliest possible time.
(c) as soon as possible. The Company will comply with all requirements imposed upon it not file any post-effective amendment to the Registration Statements or any amendment of or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Shares which differs from the prospectus filed with the Commission pursuant to Rule 424(b) of the Securities Act, the 1933 Act Rules and Regulations, the Exchange Act and the Exchange Act Rules and Regulations as from time to time in force, so far as necessary to permit the continuance of sales of, whether or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus. If during not such period where a revised prospectus relating to the Shares is required to be delivered under filed pursuant to Rule 424(b) of the Securities Act Regulations) to which the Underwriters or Underwriters' Counsel (as hereinafter defined) shall reasonably object, will furnish the Underwriters with copies of any such date amendment or supplement a reasonable amount of time prior to 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 is 90 days after the Closing Date, whichever is later, Underwriters or counsel for the Underwriters shall reasonably object.
(b) If any event occurs shall occur as a result of whichwhich the Prospectus would, in the opinion judgment of Underwriter's counsel, the Registration Statement contains Underwriters or the Company include an untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading or the Prospectus as then amended or supplemented contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if during such period it is shall be necessary at any time to amend or supplement the Prospectus or either Registration Statement or Prospectus to comply with the Securities ActAct or the Securities Act Regulations, or to file under the Exchange Act so as to comply therewith any document incorporated by reference in the Registration Statements or the Prospectus or in any amendment thereof or supplement thereto, the Company will promptly notify the Underwriter Underwriters promptly and will amend prepare and file with the Commission an appropriate amendment or supplement (in form and substance satisfactory to the Registration Statement or Prospectus (at the expense of the CompanyUnderwriters) so as to which will correct such statement or omission or which will effect such compliance.
(dc) To furnish The Company has delivered to you, without charge, (i) three conformed the Underwriters four signed copies of the Second Registration Statement (as originally filed, including exhibits and all documents incorporated or deemed to be incorporated by reference therein and all amendments thereto) , and the Company will promptly deliver to furnish each of the Underwriters, from time to you in New York City, without charge, prior to 10:00 A.M. Memphis, Tennessee time on the business day next succeeding the date of this Agreement and during the period mentioned in paragraph (a) above, as many copies of that the Prospectus and any supplements and amendments thereto is required to be delivered under the Securities Act or to the Registration Statement as you may reasonably requestExchange Act, and (ii) such number of copies of the Incorporated DocumentsProspectus and the Registration Statements, including exhibitsand all amendments of and supplements to such documents, if any, as you the Underwriters may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with the Underwriters, to qualify the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as the Underwriters may designate and to maintain such qualification in effect for so long as required for the distribution thereof; except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process.
(e) IfThe Company will make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to the Underwriters as soon as practicable, during such period but not later than 45 days after the end of its fiscal quarter in which the first anniversary date of the public offering effective date of the Shares as Second Registration Statement occurs (or if such fiscal quarter is the Company's fourth fiscal quarter, not later than 90 days after the end of such quarter), an earnings statement (in form complying with the opinion provisions of counsel for the Underwriter the Prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light Rule 158 of the circumstances when Regulations) covering a period of at least twelve consecutive months beginning after the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriter, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Shares may have been sold by you on behalf effective date of the Underwriter and to any other dealers upon request, either amendments or supplements to Second Registration Statement (as defined in Rule 158(c) under the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with law. In the event that the Company and you agree that the Prospectus should be amended or supplemented, the Company, if requested by you, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplementSecurities Act).
(f) To endeavor During the period of 90 days from the date of the Prospectus, the Company and the Operating Partnership will not, directly or indirectly without the prior written consent of Bear, Steaxxx & Xo. Inc., issue, sell, offer or agree to qualify sell, grant any option to purchase, or otherwise dispose (or announce any offer, sale, grant of an option to purchase or other disposition) of, any shares of Common Stock (or any securities convertible into, exchangeable or exercisable for shares of Common Stock), other than (i) the Company's sale of Shares hereunder and the Company's issuance of Common Stock upon the exercise of stock options outstanding at the date of the Prospectus, (ii) the exchange of outstanding units in the Operating Partnership for offer and sale under Common Stock, (iii) the securities issuance, in connection with bona fide acquisitions of real property or Blue Sky laws interests therein, of shares of Common Stock or units in the Operating Partnership such that the aggregate number of shares of Common Stock issued, or which may be issued upon conversion or exchange of such jurisdictions units, will not exceed 3,500,000 (the "Permitted Securities"); provided, however, that as you a precondition to any such issuance, the Company or the Operating Partnership, as the case may be, shall reasonably requestobtain the undertaking of each such holder that it will not engage in any of the aforementioned transactions during the period of 90 days from the date of the Prospectus and place on the face of any such Permitted Security a legend to that effect.
(g) The Company will make generally available to obtain the undertaking of each of its officers and directors, and such of its stockholders as soon as practicablehave been heretofore designated by the Underwriters and listed on Schedule II attached hereto that, and in the manner contemplated by Rule 158 until after December 31, 1997, each of the 1933 Act Rules and Regulations but in any event
(h) The Company them will not at any timenot, directly or indirectly, take without the prior written consent of Bear, Steaxxx & Xo. Inc., issue, sell, offer or agree to sell, grant any action designed tooption to purchase, or which might reasonably be expected tootherwise dispose (or announce any offer, cause sale, grant of an option to purchase or result inother disposition) of, any shares of Common Stock (or which has constituted any securities convertible into, exercisable for or which might reasonably be expected exchangeable for shares of Common Stock); provided, however, that Robexx Xxxxxxxxxx xxx pledge, hypothecate or grant a security interest in up to constitute500,000 shares of Common Stock held by him without obtaining the prior written consent of Bear, Steaxxx & Xo. Inc.
(h) During a period of three years from the date of the Prospectus, the stabilization Company will furnish to the Underwriters copies of (i) all reports to its stockholders; and (ii) all reports, financial statements and proxy or information statements filed by the price of its capital stock to facilitate Company with the sale Commission or resale of any of the Sharesnational securities exchange.
(i) The Company will use apply the net proceeds received from the sale of the Shares in the manner specified in the Prospectus as set forth under the caption "Use of Proceeds" in the Base Prospectus and the Prospectus Supplement."
(j) The Immediately following the execution of this Agreement, the Company will maintain prepare a transfer agent andprospectus supplement, if necessary under dated the jurisdiction date hereof (the "Prospectus Supplement"), containing the plan of incorporation distribution of the Company, a registrar (which Shares and such other information as may be required by the same entity Securities Act or the Securities Act Regulations or as the transfer agentUnderwriters and the Company deem appropriate, and will file or transmit for filing with the Commission in accordance with Rule 424(b) for its Common Stockof the Securities Act Regulations copies of the Prospectus (including such Prospectus Supplement).
(k) The If the Company will use its best efforts elects to maintain rely upon Rule 462(b), the listing Rule 462(b) Registration Statement shall have become effective by 10:00 P.M., Washington, D.C. time, on the date of this Agreement, no stop order suspending the effectiveness of the Shares Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission, and all requests for additional information on the NYSEpart of the Commission shall have been complied with to the Underwriters' reasonable satisfaction.
(l) The Company will use its best efforts (i) Company, during the period when the Prospectus is required to meet the requirements to qualify as a real estate investment trust be delivered under the Code and (ii) to cause each of its Subsidiaries that is organized as a partnership Securities Act or the Exchange Act, will file all documents required to be treated as a partnership for federal income tax purposes.
(m) The Company will comply filed with all the Commission pursuant to Sections 13, 14 or 15 of the provisions of any undertakings in the Registration Statement.
(n) The Company and its Subsidiaries will conduct their affairs in such a manner so as to ensure that neither the Company nor any Subsidiary will be an "investment company" or an entity "controlled" by an investment company Exchange Act within the meaning of time periods required by the 1940 ActExchange Act and the rules and regulations thereunder.
Appears in 1 contract
Samples: Underwriting Agreement (Glenborough Realty Trust Inc)
