Covenants of the Company and the Operating Partnership. Each of the Company and the Operating Partnership covenants with the Representatives, and with each Underwriter participating in the offering of Underwritten Securities, as follows: (a) In respect to each offering of Underwritten Securities, the Company or the Operating Partnership, as the case may be, will furnish to the Underwriters named in the applicable Terms Agreement as many copies of the Time of Sale Prospectus and the Prospectus (including any Prospectus Supplement) as the Representatives shall reasonably request. (b) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, file with the Commission and furnish, at their own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law. (c) If, at the time the Prospectus Supplement was filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 430B of the 1933 Act Regulations, then immediately following the execution of the Terms Agreement, the Company and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplement, or, if required by such Rule 430A or 430B, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and the Operating Partnership will pay the registration fees for each offering of securities within the time period required by Rule 456(b)(1)(i) under the 1933 Act prior to the Closing Time. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than the date of execution of the Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations. (d) The Company and the Operating Partnership will notify the Representatives immediately, and confirm such notice in writing, of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 Act, (iii) the receipt of any comments from the Commission regarding the Registration Statement or the documents incorporated therein by reference, (iv) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or any Time of Sale Prospectus or for additional information, (v) the receipt by the Company or the Operating Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act, and (vi) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; and the Company and the Operating Partnership will make every reasonable effort to prevent the issuance of any such stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment. (e) The Company and the Operating Partnership will deliver to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and the Operating Partnership and will not use or refer to any proposed free writing prospectus that is reasonably objected to by the Underwriters. (f) The Company and the Operating Partnership will not take any action that would result in an Underwriter, the Company or the Operating Partnership being required to file with the Commission pursuant to Rule 433(d) under the 1933 Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder. (g) The Company and the Operating Partnership will deliver to the Representatives as soon as possible as many signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) as the Representatives may reasonably request and will also deliver to the Representatives as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus) as the Representatives may reasonably request. (h) If, during such period after the first date of the public offering of the Underwritten Securities as the Prospectus (or in lieu thereof the notice referred to in the Rule 173(a) under the 0000 Xxx) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriters, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it ( or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, not misleading, and the Company and the Operating Partnership will furnish to the Underwriters a reasonable number of copies of such amendment or supplement. (i) The Company and the Operating Partnership will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions as the Representatives may reasonably designate. In each jurisdiction in which the Underwritten Securities have been so qualified, the Company and the Operating Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities. (j) With respect to each sale of Underwritten Securities, the Company and the Operating Partnership will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined in said Rule 158) of the Registration Statement. (k) The Company and the Operating Partnership, if applicable, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations. (l) The Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect to Preferred Stock, Depository Shares and Debt Securities, will use its commercially reasonable efforts to maintain the listing of any Underwritten Securities listed on the New York Stock Exchange. (m) With respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trustee. (n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable. (o) Unless otherwise provided in the applicable Terms Agreement, during a period of 90 days from the date of the applicable Terms Agreement relating to Underwritten Securities, the Company and the Operating Partnership will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; (ii) if such Terms Agreement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of options, and the issuance of shares in respect of such options, pursuant to a stock option plan; (iii) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter of the offering of the Underwritten Securities and the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date of the applicable Terms Agreement. (p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock. (q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable efforts to list the Common Stock on the New York Stock Exchange. (r) The Company will use commercially reasonable efforts to continue to meet the requirements to qualify as a “real estate investment trust” under the Code. (s) If the Registration Statement is an automatic shelf registration statement and the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, then the Company or the Operating Partnership, as applicable, will, prior to the third anniversary file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission;
Appears in 9 contracts
Samples: Terms Agreement (Duke Realty Limited Partnership/), Terms Agreement (Duke Realty Limited Partnership/), Terms Agreement (Duke Realty Limited Partnership/)
Covenants of the Company and the Operating Partnership. Each of the Company and the Operating Partnership covenants with the Representatives, and with each Underwriter participating in the offering of Underwritten Securities, as follows:
(a) In respect to each offering of Underwritten Securities, the Company or the Operating Partnership, as the case may be, will furnish to the Underwriters named in the applicable Terms Agreement as many copies of the Time of Sale Prospectus and the Prospectus (including any Prospectus Supplement) as the Representatives shall reasonably request.
(b) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, file with the Commission and furnish, at their own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 430B of the 1933 Act Regulations, then immediately following the execution of the Terms Agreement, the Company and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplement, or, if required by such Rule 430A or 430B, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and the Operating Partnership will pay hereby jointly and severally covenant and agree with the registration fees for each offering of securities within Dealer Manager that:
2.1 The Company will: (a) use commercially reasonable efforts to cause the time period required by Rule 456(b)(1)(i) under the 1933 Act prior to the Closing Time. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than and any subsequent amendments thereto to become effective as promptly as possible; (b) promptly advise the date of execution of the Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(d) The Company and the Operating Partnership will notify the Representatives immediately, and confirm such notice in writing, of Dealer Manager (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 Act, (iii) the receipt of any comments from of, or requests for additional or supplemental information from, the Commission regarding the Registration Statement or the documents incorporated therein by referenceCommission, (ivii) of the time and date of any request by the Commission for filing of any post-effective amendment to the Registration Statement or any amendment or supplement to the Prospectus or any Time of Sale Prospectus or for additional informationProspectus, and (viii) the receipt by the Company or the Operating Partnership of any notice of objection of the Commission to the use of the Registration Statement or time and date that any post-effective amendment thereto pursuant to Rule 401(g)(2the Registration Statement becomes effective; (c) under timely file every amendment or supplement to the 1933 Act, and (vi) Registration Statement or the issuance Prospectus that may be required by the Commission of or under the Securities Act; and (d) if at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement or Statement, it will promptly notify the initiation of any proceedings for that purpose; and Dealer Manager and, to the extent the Company and determines such action is in the Operating Partnership will make every best interest of the Company, use its commercially reasonable effort to prevent the issuance of any such stop order and, if any stop order is issued, efforts to obtain the lifting thereof of such order at the earliest possible momenttime.
(e) The 2.2 In addition to and apart from the Prospectus, the Company and intends to use printed sales literature or other materials in connection with the Operating Partnership will deliver to the Representatives a copy of each proposed free writing prospectus to be Offering prepared by or on behalf of, used by, or referred to by the Company and or Insight Green REIT Advisor, LLC, a Delaware limited liability company that serves as the Operating Partnership and will not use Company’s advisor pursuant to the terms of an advisory agreement (the “Advisor”), which materials are generally described in the Prospectus. Such printed sales literature or refer to any proposed free writing prospectus that is reasonably objected to other materials prepared by the Underwriters.
(f) The Company and the Operating Partnership will not take any action that would result in an Underwriter, the Company or the Operating Partnership being required Advisor, provided that the use of said sales literature and other materials has been approved for use by the Company in writing and all appropriate regulatory agencies, are referred to file hereinafter as the “Authorized Sales Materials.” In the event that the Company uses printed materials in connection with the Commission pursuant to Rule 433(d) under the 1933 Act a free writing prospectus Offering prepared by the Company or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunderAdvisor intended for “broker-dealer use only,” Dealer Manager shall use such “broker-dealer use only” materials in accordance with Section 4.3 below.
(g) 2.3 The Company and the Operating Partnership will deliver will, at no expense to the Representatives as soon as possible as many signed Dealer Manager, furnish the Dealer Manager with such number of printed copies of the Registration Statement as originally filed Statement, including all amendments and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) thereto, as the Representatives Dealer Manager may reasonably request. The Company will similarly furnish to the Dealer Manager and others designated by the Dealer Manager as many copies as the Dealer Manager may reasonably request in connection with the Offering of the Offered Shares of: (a) the Prospectus in preliminary and final form and every form of supplemental or amended prospectus; and (b) the Authorized Sales Materials.
2.4 The Company will also deliver use its commercially reasonable efforts to qualify the Offered Shares for offering and sale under, or to establish the exemption of the offering and sale of the Offered Shares from qualification or registration under, the applicable state securities or “blue sky” laws of each jurisdiction designated in Exhibit B hereto (the “Qualified Jurisdictions”) and to maintain such qualifications or exemptions in effect throughout the Offering. In connection therewith, the Company will prepare and file all such post-sales filings or reports as may be required by the securities regulatory authorities in the Qualified Jurisdictions in which the Offered Shares have been sold, provided that the Dealer Manager shall have provided the Company with any information required for such filings or reports that is in the Dealer Manager’s possession. The Company will notify the Dealer Manager promptly following each date of: (a) the effectiveness of qualification or exemption of Offered Shares in any additional jurisdiction in which the offering and sale of Offered Shares has been authorized by appropriate state regulatory authorities; and (b) a change in the status of the qualification or exemption of the Offered Shares in any jurisdiction in any respect. The Company will file and obtain clearance of the Authorized Sales Material to the Representatives as many conformed copies extent required by applicable state securities laws. The Company will furnish to the Dealer Manager a copy of such papers filed by the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus) as the Representatives may reasonably requestCompany in connection with any such qualification.
(h) If, during such period after the first date of the public offering of the Underwritten Securities as the 2.5 If at any time when a Prospectus (or in lieu thereof the notice referred to in the Rule 173(a) under the 0000 Xxx) is required by law to be delivered in connection with sales by an Underwriter or dealer, under the Securities Act any event shall occur occurs as a result of which it is necessarywhich, in the reasonable opinion of counsel for the Underwriters, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so amended or supplementedCompany, the Prospectus will not would include an untrue statement of a material fact or omit omits to state a any material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it ( or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaserwhich they are made, not misleading, the Company will promptly notify the Dealer Manager thereof (unless the information shall have been received from the Dealer Manager) and the Company Dealer Manager and the Operating Partnership will furnish to Participating Dealers shall suspend the Underwriters a reasonable number of copies of such amendment or supplement.
(i) The Company and the Operating Partnership will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities for offering and sale under of the applicable securities laws and real estate syndication laws of Offered Shares in accordance with Section 4.3 hereof until such states and other jurisdictions time as the Representatives may reasonably designate. In each jurisdiction Company, in which its sole discretion (a) instructs the Underwritten Securities have been so qualified, Dealer Manager to resume the Company offering and the Operating Partnership 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 sale of the Underwritten SecuritiesOffered Shares and (b) has prepared any required supplemental or amended prospectus as shall be necessary to correct such statement or omission and to comply with the requirements of Section 10 of the Securities Act.
(j) With respect to each sale of Underwritten Securities, the Company and the Operating Partnership will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined in said Rule 158) of the Registration Statement.
(k) The Company and the Operating Partnership, if applicable, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(l) 2.6 The Company will file with apply the New York Stock Exchange all documents and notices required by proceeds from the New York Stock Exchange sale of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect to Preferred Stock, Depository the Offered Shares and Debt Securities, will use its commercially reasonable efforts to maintain as stated in the listing of any Underwritten Securities listed on the New York Stock ExchangeProspectus.
(m) With respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable.
(o) Unless otherwise provided in the applicable Terms Agreement, during a period of 90 days from the date of the applicable Terms Agreement relating to Underwritten Securities, the Company and the Operating Partnership will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; (ii) if such Terms Agreement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of options, and the issuance of shares in respect of such options, pursuant to a stock option plan; (iii) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter of the offering of the Underwritten Securities and the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date of the applicable Terms Agreement.
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable efforts to list the Common Stock on the New York Stock Exchange.
(r) 2.7 The Company will use commercially reasonable efforts to continue to meet engage and maintain, at its expense, a registrar and transfer agent for the requirements to qualify as a “real estate investment trust” under the CodeOffered Shares.
(s) If the Registration Statement is an automatic shelf registration statement and the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, then the Company or the Operating Partnership, as applicable, will, prior to the third anniversary file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission;
Appears in 6 contracts
Samples: Dealer Manager Agreement (Green Realty Trust, Inc.), Dealer Manager Agreement (Green Realty Trust, Inc.), Dealer Manager Agreement (Green Realty Trust, Inc.)
Covenants of the Company and the Operating Partnership. Each of the Company and the Operating Partnership covenants with the Representatives, and with each Underwriter participating in the offering of Underwritten Securities, as follows:
(a) In respect to each offering of Underwritten Securities, the Company or the Operating Partnership, as the case may be, will prepare a Prospectus Supplement setting forth the number of Underwritten Securities covered thereby and their terms not otherwise specified in the Prospectus pursuant to which the Underwritten Securities are being issued, the names of the Underwriters participating in the offering and the number of Underwritten Securities which each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, the price at which the Underwritten Securities are to be purchased by the Underwriters from the Company or the Operating Partnership, as the case may be, the initial public offering price, if any, the selling concession and reallowance, if any, and such other information as the Representatives and the Company or the Operating Partnership, as the case may be, deem appropriate in connection with the offering of the Underwritten Securities; and the Company or the Operating Partnership, as the case may be, will promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations and will furnish to the Underwriters named in the applicable Terms Agreement therein as many copies of the Time of Sale Prospectus and the Prospectus (including any such Prospectus Supplement) as the Representatives shall reasonably request.
(b) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, file with the Commission and furnish, at their own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 430B of the 1933 Act Regulations, then immediately following the execution of the Terms Agreement, the Company and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, 430A and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplementcopy of an amended Prospectus, or, if required by such Rule 430A or 430B430A, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and the Operating Partnership will pay the registration fees for each offering of securities within the time period required by Rule 456(b)(1)(i) under the 1933 Act prior to the Closing Time. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than the date of execution of the Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(dc) The Company and the Operating Partnership will notify the Representatives immediately, and confirm such notice in writing, of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 Act, (iii) the receipt of any comments from the Commission regarding the Registration Statement or the documents incorporated therein by referenceCommission, (iv) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or any Time of Sale Prospectus or for additional information, and (v) the receipt by the Company or the Operating Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act, and (vi) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; and the Company and the Operating Partnership will make every reasonable effort to prevent the issuance of any such stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(ed) The At any time when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, the Company and the Operating Partnership will deliver give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement or any amendment or supplement to the Prospectus, whether pursuant to the 1933 Act, 1934 Act or otherwise, will furnish the Representatives with copies of any such amendment or supplement a copy reasonable amount of each time prior to such proposed free writing prospectus to be prepared filing and, unless required by or on behalf oflaw, used by, or referred to by the Company and the Operating Partnership and will not file or use any such amendment or refer supplement or other documents in a form to any proposed free writing prospectus that is which the Representatives or counsel for the Underwriters shall reasonably objected to by the Underwritersobject.
(f) The Company and the Operating Partnership will not take any action that would result in an Underwriter, the Company or the Operating Partnership being required to file with the Commission pursuant to Rule 433(d) under the 1933 Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(ge) The Company and the Operating Partnership will deliver to the Representatives as soon as possible as many signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) as the Representatives may reasonably request and will also deliver to the Representatives as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus) as the Representatives may reasonably request.
(hf) IfThe Company and the Operating Partnership will furnish to each Underwriter, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such period after the first date number of the public offering copies of the Underwritten Securities as the Prospectus (as amended or in lieu thereof supplemented) as such Underwriter may reasonably request for the notice referred to in purposes contemplated by the Rule 173(a1933 Act or the 1934 Act or the respective applicable rules and regulations of the Commission thereunder.
(g) under the 0000 Xxx) is required by law to be delivered in connection with sales by an Underwriter or dealer, If any event shall occur as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriters, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it ( or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, not misleading, and the Company and the Operating Partnership will furnish to the Underwriters a reasonable number of copies of such amendment or supplement.
(ih) The Company and the Operating Partnership will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions as the Representatives may reasonably designate. In each jurisdiction in which the Underwritten Securities have been so qualified, the Company and the Operating Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities.
(ji) With respect to each sale of Underwritten Securities, the Company and the Operating Partnership will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined in said Rule 158) of the Registration Statement.
(j) Each of the Company and the Operating Partnership will use the net proceeds received by it from the sale of the Underwritten Securities in the manner specified in the Prospectus under “Use of Proceeds.”
(k) The Company and the Operating Partnership, if applicable, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(l) The Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect to Preferred Stock, Depository Shares and Debt Securities, will use its commercially reasonable best efforts to maintain the listing of any Underwritten Securities listed on the New York Stock Exchange.
(m) With In respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable.
(o) Unless otherwise provided in the applicable Terms Agreement, during During a period of 90 days from the date of the applicable Terms Agreement any Prospectus Supplement relating to Underwritten Securities, the Company and the Operating Partnership will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; series or ranking on a parity with any Underwritten Securities (other than the Underwritten Securities covered by such Prospectus Supplement or any security convertible into or exchangeable for shares of such Underwritten Securities and (ii) if such Terms Agreement Prospectus Supplement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of options, and the issuance of shares in respect of such options, pursuant to a stock option plan; (iii) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter of the offering of the Underwritten Securities and the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date of the applicable Terms Agreementany Prospectus Supplement.
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable its best efforts to list the Common Stock on the New York Stock Exchange.
(r) The Company will use commercially reasonable its best efforts to continue to meet the requirements to qualify as a “real estate investment trust” under the Code.
(s) If During the Registration Statement is an automatic shelf registration statement period from the Closing Time until five years after the Closing Time, the Company and the third anniversary Operating Partnership will deliver to the Representatives, (i) promptly upon their becoming available, copies of all current, regular and periodic reports of the initial effective date Company mailed to its stockholders or filed with any securities exchange or with the Commission or any governmental authority succeeding to any of the Registration Statement occurs before all of the Securities have been sold by the UnderwritersCommission’s functions, then and (ii) such other information concerning the Company or and the Operating Partnership, Partnership as applicable, will, prior to the third anniversary file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission;Representatives may reasonably request.
Appears in 4 contracts
Samples: Underwriting Agreement (Duke Realty Limited Partnership/), Underwriting Agreement (Duke Realty Limited Partnership/), Underwriting Agreement (Duke Realty Corp)
Covenants of the Company and the Operating Partnership. Each of the Company and the Operating Partnership covenants with the Representatives, and with each Underwriter participating in the offering of Underwritten Securities, as follows:
(a) In respect to each offering of Underwritten Securities, the Company or the Operating Partnership, as the case may be, will furnish to the Underwriters named in the applicable Terms Agreement as many copies of the Time of Sale Prospectus and the Prospectus (including any Prospectus Supplement) as the Representatives shall reasonably request.
(b) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, file with the Commission and furnish, at their own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 430B of the 1933 Act Regulations, then immediately following the execution of the Terms Agreement, the Company and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplement, or, if required by such Rule 430A or 430B, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and the Operating Partnership will pay the registration fees for each offering of securities within the time period required by Rule 456(b)(1)(i) under the 1933 Act prior to the Closing Time. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than the date of execution of the Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(d) The Company and the Operating Partnership will notify the Representatives immediately, and confirm such notice in writing, of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 Act, (iii) the receipt of any comments from the Commission regarding the Registration Statement or the documents incorporated therein by reference, (iv) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or any Time of Sale Prospectus or for additional information, (v) the receipt by the Company or the Operating Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act, and (vi) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; and the Company and the Operating Partnership will make every reasonable effort to prevent the issuance of any such stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(e) The Company and the Operating Partnership will deliver to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and the Operating Partnership and will not use or refer to any proposed free writing prospectus that is reasonably objected to by the Underwriters.
(f) The Company and the Operating Partnership will not take any action that would result in an Underwriter, the Company or the Operating Partnership being required to file with the Commission pursuant to Rule 433(d) under the 1933 Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(g) The Company and the Operating Partnership will deliver to the Representatives as soon as possible as many signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) as the Representatives may reasonably request and will also deliver to the Representatives as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus) as the Representatives may reasonably request.
(h) If, during such period after the first date of the public offering of the Underwritten Securities as the Prospectus (or in lieu thereof the notice referred to in the Rule 173(a) under the 0000 Xxx) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriters, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it ( or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, not misleading, and the Company and the Operating Partnership will furnish to the Underwriters a reasonable number of copies of such amendment or supplement.
(i) The Company and the Operating Partnership will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions as the Representatives may reasonably designate. In each jurisdiction in which the Underwritten Securities have been so qualified, the Company and the Operating Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities.
(j) With respect to each sale of Underwritten Securities, the Company and the Operating Partnership will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined in said Rule 158) of the Registration Statement.
(k) The Company and the Operating Partnership, if applicable, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(l) The Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect to Preferred Stock, Depository Shares and Debt Securities, will use its commercially reasonable efforts to maintain the listing of any Underwritten Securities listed on the New York Stock Exchange.
(m) With respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable.
(o) Unless otherwise provided in the applicable Terms Agreement, during a period of 90 days from the date of the applicable Terms Agreement relating to Underwritten Securities, the Company and the Operating Partnership will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; and (ii) if such Terms Agreement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of optionsshares of restricted stock, restricted stock units, options or other similar securities pursuant to employee or director equity plans, and the issuance of shares in respect of the conversion or exercise of any such options, pursuant to a stock option plansecurities; (iii) the issuance of shares of Common Stock pursuant to the Duke Realty 401(k) Plan; (iv) the issuance of shares pursuant to a dividend reinvestment plan, including the Company’s Direct Stock Purchase and Dividend Reinvestment Plan; (v) the issuance of shares pursuant to an employee stock purchase plan; and (ivvi) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter of the offering of the Underwritten Securities and the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date of the applicable Terms Agreement.
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable efforts to list the Common Stock on the New York Stock Exchange.
(r) The Company will use commercially reasonable efforts to continue to meet the requirements to qualify as a “real estate investment trust” under the Code.
(s) If the Registration Statement is an automatic shelf registration statement and the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, then the Company or the Operating Partnership, as applicable, will, prior to the third anniversary file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission;
Appears in 4 contracts
Samples: Terms Agreement (Duke Realty Limited Partnership/), Terms Agreement (Duke Realty Limited Partnership/), Terms Agreement (Duke Realty Limited Partnership/)
Covenants of the Company and the Operating Partnership. Each of the Company and the Operating Partnership covenants with the Representatives, and with each Underwriter participating in the offering of Underwritten Securities, as follows:
(a) In respect to each offering of Underwritten Securities, the Company or the Operating Partnership, as the case may be, will furnish to the Underwriters named in the applicable Terms Agreement as many copies of the Time of Sale Prospectus and the Prospectus (including any Prospectus Supplement) as the Representatives shall reasonably request.
(b) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, file with the Commission and furnish, at their own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 430B of the 1933 Act Regulations, then immediately following the execution of the Terms Agreement, the Company and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplement, or, if required by such Rule 430A or 430B, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and the Operating Partnership will pay hereby jointly and severally covenant and agree with the registration fees for each offering of securities within Dealer Manager that:
2.1 The Company will: (a) use commercially reasonable efforts to cause the time period required by Rule 456(b)(1)(i) under the 1933 Act prior to the Closing Time. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than and any subsequent amendments thereto to become effective as promptly as possible; (b) promptly advise the date of execution of the Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(d) The Company and the Operating Partnership will notify the Representatives immediately, and confirm such notice in writing, of Dealer Manager (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 Act, (iii) the receipt of any comments from of, or requests for additional or supplemental information from, the Commission regarding the Registration Statement or the documents incorporated therein by referenceCommission, (ivii) of the time and date of any request by the Commission for filing of any post-effective amendment to the Registration Statement or any amendment or supplement to the Prospectus or any Time of Sale Prospectus or for additional informationProspectus, and (viii) the receipt by the Company or the Operating Partnership of any notice of objection of the Commission to the use of the Registration Statement or time and date that any post-effective amendment thereto pursuant to Rule 401(g)(2the Registration Statement becomes effective; (c) under timely file every amendment or supplement to the 1933 Act, and (vi) Registration Statement or the issuance Prospectus that may be required by the Commission of or under the Securities Act; and (d) if at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement or Statement, it will promptly notify the initiation of any proceedings for that purpose; and Dealer Manager and, to the extent the Company and determines such action is in the Operating Partnership will make every best interest of the Company, use its commercially reasonable effort to prevent the issuance of any such stop order and, if any stop order is issued, efforts to obtain the lifting thereof of such order at the earliest possible momenttime.
(e) The 2.2 In addition to and apart from the Prospectus, the Company intends to use printed sales literature or other materials prepared by the Advisor in connection with the Offering, which materials may consist of a brochure describing the Advisor and its affiliates and the objectives of the Company and the Operating Partnership will deliver may also contain pictures and summary descriptions of properties similar to the Representatives a copy of each proposed free writing prospectus those to be prepared by or on behalf of, used by, or referred to acquired by the Company that the Advisor or its affiliates have previously acquired. These materials may also include pictures and the Operating Partnership and will not use or refer summary descriptions of properties similar to any proposed free writing prospectus that is reasonably objected those to be acquired by the Underwriters.
(f) Company, as well as brochures, audiovisual materials and tape presentations highlighting and explaining various features of the Offering, properties of prior real estate programs and real estate investments in general, and articles and publications concerning real estate. The Company also may use business reply cards, introductory letters and the Operating Partnership will not take any action seminar invitation forms that would result in an Underwriterbe sent to Participating Dealers and prospective investors. Such printed sales literature or other materials prepared by the Advisor, provided that the use of said sales literature and other materials has been approved for use by the Company or in writing and all appropriate regulatory agencies, are referred to hereinafter as the Operating Partnership being required to file with the Commission pursuant to Rule 433(d) under the 1933 Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder“Authorized Sales Materials.”
(g) 2.3 The Company and the Operating Partnership will deliver will, at no expense to the Representatives as soon as possible as many signed Dealer Manager, furnish the Dealer Manager with such number of printed copies of the Registration Statement as originally filed Statement, including all amendments and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) thereto, as the Representatives Dealer Manager may reasonably request. The Company will similarly furnish to the Dealer Manager and others designated by the Dealer Manager as many copies as the Dealer Manager may reasonably request and will also deliver to in connection with the Representatives as many conformed copies Offering of the Registration Statement as originally filed Offered Shares of: (a) the Prospectus in preliminary and final form and every form of supplemental or amended prospectus; and (b) the Authorized Sales Materials.
2.4 The Company will use its commercially reasonable efforts to qualify the Offered Shares for offering and sale under, or to establish the exemption of the offering and sale of the Offered Shares from qualification or registration under, the applicable state securities or “blue sky” laws of each amendment thereto jurisdiction designated in Exhibit B hereto (including documents incorporated the “Qualified Jurisdictions”) and to maintain such qualifications or exemptions in effect throughout the Offering. In connection therewith, the Company will prepare and file all such post-sales filings or reports as may be required by reference into the Prospectus) as the Representatives may reasonably request.
(h) If, during such period after the first date of the public offering of the Underwritten Securities as the Prospectus (or in lieu thereof the notice referred to securities regulatory authorities in the Rule 173(a) under Qualified Jurisdictions in which the 0000 Xxx) Offered Shares have been sold, provided that the Dealer Manager shall have provided the Company with any information required for such filings or reports that is required by law in the Dealer Manager’s possession. Simultaneously with the execution and delivery of this Agreement, the Company is causing to be delivered to the Dealer Manager a preliminary survey relating to the state securities or “blue sky” laws of the Qualified Jurisdictions and advising of the “blue sky” action, if any, which was taken in each such jurisdiction so as to permit the offer and sale of the Offered Shares, and the Company will cause updates of such survey to be prepared and delivered to the Dealer Manager promptly following each date of: (a) the effectiveness of qualification or exemption of Offered Shares in any additional jurisdiction in which the offering and sale of Offered Shares has been authorized by appropriate state regulatory authorities; and (b) a change in the status of the qualification or exemption of the Offered Shares in any jurisdiction in any respect. It is understood that such surveys shall not constitute opinions of law, and such surveys may be based upon an examination of the statutes and regulations, if any, of such jurisdictions as set forth in the latest unofficial compilations and upon communications with authorities administering such laws in certain instances. The Company will cause the Dealer Manager to receive telephonic advice of the effectiveness of each qualification or exemption of the Offered Shares immediately thereafter. The Company will file and obtain clearance of the Authorized Sales Material to the extent required by applicable state securities laws. The Company will furnish to the Dealer Manager a copy of such papers filed by the Company in connection with sales by an Underwriter or dealer, any such qualification.
2.5 If at any time when a Prospectus is required to be delivered under the Securities Act any event shall occur occurs as a result of which it is necessarywhich, in the reasonable opinion of counsel for the Underwriters, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so amended or supplementedCompany, the Prospectus will not would include an untrue statement of a material fact or omit omits to state a any material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it ( or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaserwhich they are made, not misleading, the Company will promptly notify the Dealer Manager thereof (unless the information shall have been received from the Dealer Manager) and the Company Dealer Manager and the Operating Partnership will furnish to Participating Dealers shall suspend the Underwriters a reasonable number of copies of such amendment or supplement.
(i) The Company and the Operating Partnership will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities for offering and sale of the Offered Shares in accordance with Section 4.4 hereof until such time as the Company, in its sole discretion (a) instructs the Dealer Manager to resume the offering and sale of the Offered Shares and (b) has prepared any required supplemental or amended prospectus as shall be necessary to correct such statement or omission and to comply with the requirements of Section 10 of the Securities Act.
2.6 The Company intends to satisfy the requirements of the Code for qualification of the Company as a real estate investment trust. The Company will elect to be treated as a real estate investment trust under the applicable securities laws Code at such time as it so qualifies and real estate syndication laws will direct the investment of the proceeds of the offering of the Offered Shares in such states a manner, and other jurisdictions will exercise reasonable diligence to operate the business of the Company, so as to comply with such requirements.
2.7 The Company will apply the Representatives may reasonably designate. In each jurisdiction proceeds from the sale of the Offered Shares as stated in which the Underwritten Securities have been so qualifiedProspectus.
2.8 The Company will engage and maintain, the Company at its expense, a registrar and the Operating Partnership 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 transfer agent for the distribution of the Underwritten SecuritiesOffered Shares.
(j) With respect to each sale of Underwritten Securities, the 2.9 The Company and the Operating Partnership will make generally available to its security holders and deliver to the Dealer Manager as soon as practicable, but in any event not later than 45 days after the end of the fiscal quarter first occurring after the first anniversary of the Effective Date of the Registration Statement (unless such fiscal quarter is the last fiscal quarter of the Company’s fiscal year, in which case such earnings statement shall be delivered no later than 90 days after the close fiscal quarter first occurring after the first anniversary of the period covered thereby, Effective Date of the Registration Statement) an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form form, at the option of the Company, complying with the provisions of Rule 158 of the 1933 Securities Act Regulations) covering a twelve-month period of 12 months beginning not later than after the first day of the Company’s fiscal quarter next following the “effective date” (as defined in said Rule 158) Effective Date of the Registration Statement.
(k) The Company and . For purposes of this Section 2.10, the Operating Partnership, if applicable, during term “Effective Date” shall have the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission meaning ascribed thereto pursuant to Sections 13, 14 or 15 of Rule 158(c) and include the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(l) The Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect to Preferred Stock, Depository Shares and Debt Securities, will use its commercially reasonable efforts to maintain the listing of any Underwritten Securities listed on the New York Stock Exchange.
(m) With respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable.
(o) Unless otherwise provided in the applicable Terms Agreement, during a period of 90 days from the effective date of the applicable Terms Agreement relating last post-effective amendment to Underwritten Securitiesthe Registration Statement next preceding a sale of Offered Shares.
2.10 The parties hereto acknowledge and agree that the Advisor may, from time to time, employ and compensate persons to assist in the Company marketing of the Offered Shares (the “Related Persons”); provided, however, that:(a) the employment of such Related Persons shall be approved in advance by the Dealer Manager, in its sole discretion; (b) the employment of each such Related Persons by the Advisor shall be conditioned upon the existence of a written associated person agreement between such Related Person and the Operating Partnership will Dealer Manager; (c) the Advisor shall not, without the prior written consent of the RepresentativesDealer Manager, directly or indirectlywhich consent may be withheld in its sole discretion, sellpay compensation and benefits to all such Related Persons which, offer to sellin the aggregate, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; (ii) if such Terms Agreement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of options, and the issuance of shares in respect of such options, pursuant to have a stock option plan; (iii) the issuance of shares pursuant to a dividend reinvestment planvalue exceeding $700,000 on an annualized basis; and (ivd) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with Dealer Manager shall periodically reimburse the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter of the offering of the Underwritten Securities and the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option Advisor for the sale of, or otherwise dispose amount of any of such securities until the expiration of a 90-day period from the date of the applicable Terms Agreement.
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve compensation and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable efforts to list the Common Stock on the New York Stock Exchange.
(r) The Company will use commercially reasonable efforts to continue to meet the requirements to qualify as a “real estate investment trust” under the Code.
(s) If the Registration Statement is an automatic shelf registration statement and the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold benefits paid by the Underwriters, then Advisor to such Related Persons. The parties hereby acknowledge and agree that Xxxxxxx Xxxxx and Xxxxxx Xxxxxxx shall become Related Persons within the Company or the Operating Partnership, as applicable, will, prior to the third anniversary file a new shelf registration statement and take any other action necessary to permit the public offering meaning of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission;this Section 2.10.
Appears in 3 contracts
Samples: Dealer Manager Agreement (Paladin Realty Income Properties Inc), Dealer Manager Agreement (Paladin Realty Income Properties Inc), Dealer Manager Agreement (Paladin Realty Income Properties Inc)
Covenants of the Company and the Operating Partnership. Each of the Company and the Operating Partnership covenants with the Representatives, and with each Underwriter participating in the offering of Underwritten Securities, as follows:
(a) In respect to each offering of Underwritten Securities, the Company or the Operating Partnership, as the case may be, will furnish to the Underwriters named in the applicable Terms Agreement as many copies of the Time of Sale Prospectus and the Prospectus (including any Prospectus Supplement) as the Representatives shall reasonably request.
(b) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, file with the Commission and furnish, at their own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 430B of the 1933 Act Regulations, then immediately following the execution of the Terms Agreement, the Company and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplement, or, if required by such Rule 430A or 430B, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and the Operating Partnership will pay the registration fees for each offering of securities within the time period required by Rule 456(b)(1)(i) under the 1933 Act prior to the Closing Time. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than the date of execution of the Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(d) The Company and the Operating Partnership will notify the Representatives immediately, and confirm such notice in writing, of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 Act, (iii) the receipt of any comments from the Commission regarding the Registration Statement or the documents incorporated therein by reference, (iv) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or any Time of Sale Prospectus or for additional information, (v) the receipt by the Company or the Operating Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act, and (vi) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; and the Company and the Operating Partnership will make every reasonable effort to prevent the issuance of any such stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(e) The Company and the Operating Partnership will deliver to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and the Operating Partnership and will not use or refer to any proposed free writing prospectus that is reasonably objected to by the Underwriters.
(f) The Company and the Operating Partnership will not take any action that would result in an Underwriter, the Company or the Operating Partnership being required to file with the Commission pursuant to Rule 433(d) under the 1933 Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(g) The Company and the Operating Partnership will deliver to the Representatives as soon as possible as many signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) as the Representatives may reasonably request and will also deliver to the Representatives as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus) as the Representatives may reasonably request.
(h) If, during such period after the first date of the public offering of the Underwritten Securities as the Prospectus (or in lieu thereof the notice referred to in the Rule 173(a) under the 0000 Xxx) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriters, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it ( (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, not misleading, and the Company and the Operating Partnership will furnish to the Underwriters a reasonable number of copies of such amendment or supplement.
(i) The Company and the Operating Partnership will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions as the Representatives may reasonably designate. In each jurisdiction in which the Underwritten Securities have been so qualified, the Company and the Operating Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities.
(j) With respect to each sale of Underwritten Securities, the The Company and the Operating Partnership will file such reports pursuant to the 1934 Act as are necessary in order to make generally available to its security holders securityholders as soon as practicable, but not later than 90 days after the close of the period covered thereby, practicable an earnings statement (in form complying with for the provisions purpose of, and to provide to the Underwriters the benefits contemplated by, the last paragraph of Rule 158 Section 11(a) of the 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined in said Rule 158) of the Registration StatementAct.
(k) The Company and the Operating Partnership, if applicable, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(l) The Company will file with the New York Stock Exchange NYSE all documents and notices required by the New York Stock Exchange NYSE of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect to Preferred Stock, Depository Shares and Debt Securities, will use its commercially reasonable efforts to maintain the listing of any Underwritten Securities listed on the New York Stock ExchangeNYSE.
(m) With respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable.
(o) Unless otherwise provided in the applicable Terms Agreement, during a period of 90 days from the date of the applicable Terms Agreement relating to Underwritten Securities, the Company and the Operating Partnership will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; and (ii) if such Terms Agreement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of optionsshares of restricted stock, restricted stock units, options or other similar securities pursuant to employee or director equity plans, and the issuance of shares in respect of the conversion or exercise of any such options, pursuant to a stock option plansecurities; (iii) the issuance of shares of Common Stock pursuant to the Duke Realty 401(k) Plan;
(iv) the issuance of shares pursuant to a dividend reinvestment plan, including the Company’s Direct Stock Purchase and Dividend Reinvestment Plan; (v) the issuance of shares pursuant to an employee stock purchase plan; and (ivvi) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter of the offering of the Underwritten Securities and the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date of the applicable Terms Agreement.
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable efforts to list the Common Stock on the New York Stock ExchangeNYSE.
(r) The Company will use commercially reasonable efforts to continue to meet the requirements to qualify as a “real estate investment trust” under the Code.
(s) With respect to each offering of the Underwritten Securities, the Company will use the net proceeds received by it from the sale of such Underwritten Securities in the manner specified in the applicable Prospectus Supplement.
(t) If the Registration Statement is an automatic shelf registration statement and the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, then the Company or the Operating Partnership, as applicable, will, prior to the third anniversary file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission;
Appears in 3 contracts
Samples: Terms Agreement (DUKE REALTY LTD PARTNERSHIP/), Terms Agreement (DUKE REALTY LTD PARTNERSHIP/), Terms Agreement (Duke Realty Limited Partnership/)
Covenants of the Company and the Operating Partnership. Each of the Company and the Operating Partnership Partnership, jointly and severally, covenants with the Representativesyou, and with each Underwriter participating in the offering of Underwritten Securitiesthe Notes, as follows:
(a) In respect The Operating Partnership will comply, subject to each the remainder of this clause (a), with the requirements of Rule 430B. Prior to the termination of the offering of Underwritten Securitiesthe Notes, the Company or the Operating Partnership, as the case may be, will furnish to the Underwriters named in the applicable Terms Agreement as many copies of the Time of Sale Prospectus and the Prospectus (including any Prospectus Supplement) as the Representatives shall reasonably request.
(b) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, not use or file with the Commission and furnish, at their own expense, any amendment to the Underwriters and to any dealer upon request, either amendments Registration Statement or supplements amendment or supplement to the Time Disclosure Package or the Prospectus or any new registration statement relating to the Notes unless the Operating Partnership 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 Operating Partnership has given the Representatives notice of Sale Prospectus so that any filings made pursuant to the statements in 1934 Act or 1934 Act Regulations within 48 hours prior to the Time of Sale Prospectus as so amended or supplemented Applicable Time. The Operating Partnership will not, in cause the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplementedproperly completed, will no longer conflict with and any supplement thereto to be filed in a form to which the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed Representatives shall not have reasonably objected with the Commission pursuant to Rule the applicable paragraph of 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 430B of the 1933 Act Regulations, then immediately following the execution of the Terms Agreement, the Company and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplement, or, if required by such Rule 430A or 430B, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and the Operating Partnership will pay the registration fees for each offering of securities within the time period required by Rule 456(b)(1)(i) under the 1933 Act prior prescribed and will provide evidence satisfactory to the Closing TimeRepresentatives of such timely filing. If required, the Company and the The Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than the date of execution of the Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(d) The Company and the Operating Partnership will notify promptly advise the Representatives immediately, and confirm such notice in writing, (a) of (i) the effectiveness of any amendment to the Registration StatementStatement or any new registration statement relating to the Notes, (iib) of the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus or any document to be filed pursuant to the 1933 1934 Act, (iiic) of the receipt of any comments from the Commission regarding with respect to the Registration Statement or the Prospectus or documents incorporated therein or deemed to be incorporated by referencereference therein, (ivd) 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 Time stop order by the Commission suspending the effectiveness of Sale 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 additional informationthat purpose or of any examination pursuant to Section 8(d) or 8(e) of the 1933 Act concerning the Registration Statement, (vf) 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 effectiveness. References herein to the “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 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 1933 Act, any event or development occurs as a result of which, in the opinion of counsel for the Underwriters or for the Operating Partnership, the Registration Statement or the Prospectus would include any untrue statement of a material fact or omit to state any material fact 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, 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 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 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 in order to make the statements therein, in the light of the circumstances existing at the time it is used, not misleading, the Operating Partnership and the Company promptly will (1) notify the Representatives of any such event or development, (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 Underwriters or for Operating Partnership, conflicted or would conflict with the information contained in the Registration Statement (or any other registration statement relating to the Notes), the Statutory Prospectus or the Prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the 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 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 “free writing prospectus” (as defined in Rule 405), required to be filed by the Company or the Operating Partnership of any notice of objection of with the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act, and (vi) the issuance retained by the Commission of any stop order suspending the effectiveness of the Registration Statement Company or the initiation of any proceedings for that purpose; and the Company and 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 make every reasonable effort 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 prevent any Permitted Free Writing Prospectus, including in respect of timely filing with the issuance Commission, legending and record keeping. The Operating Partnership will furnish to the Underwriters, without charge, copies of any such stop order anddocuments a reasonable amount of time prior to such proposed filing or use, if any stop order is issuedas the case may be, to obtain the lifting thereof at the earliest possible moment.
(e) The Company and the Operating Partnership will deliver to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and the Operating Partnership and will not file or use any such documents to which the Underwriters or refer to any proposed free writing prospectus that is counsel for the Underwriters shall reasonably objected to by the Underwritersobject.
(f) The Company and the Operating Partnership have furnished or will not take any action that would result in an furnish to each Underwriter, the Company or the Operating Partnership being required to file with the Commission pursuant to Rule 433(d) under the 1933 Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(g) The Company and the Operating Partnership will deliver to the Representatives as soon as possible 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 Representatives may such Underwriter reasonably request and will also deliver to the Representatives as many conformed copies of the requests. The Registration Statement as originally filed and of each amendment thereto (including documents incorporated 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 reference into the Prospectus) as the Representatives may reasonably request.Regulation S‑T.
(hg) IfThe Company and the Operating Partnership will furnish, without charge, to each Underwriter, from time to time during such the period after the first date of the public offering of the Underwritten Securities as when the Prospectus (or or, in lieu thereof the notice referred to in the Rule 173(a) under the 0000 Xxx) is required by law to be delivered in connection with sales by an Underwriter or dealerthereof, any event shall occur as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriters, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it (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, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so amended or supplemented1933 Act Regulations, the Prospectus will not include an untrue statement of a material fact 1934 Act or omit to state a material fact necessary the 1934 Act Regulations in order to make the statements therein, in the light connection with sales of the circumstances existing at the time it ( or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaserNotes, not misleading, and the Company and the Operating Partnership will furnish to the Underwriters a reasonable such number of copies of the Prospectus (as amended or supplemented) as such amendment Underwriter may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or supplement.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.
(ih) The Company and the Operating Partnership will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities 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. In ; and in each jurisdiction in which the Underwritten Securities Notes have been so qualified, the Company Operating Partnership and the Operating Partnership Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten SecuritiesNotes; 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.
(ji) With respect to each sale of Underwritten SecuritiesNotes, the Company and the Operating Partnership and the Company will each make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-twelve month period beginning not later than the earlier of the first day of the Operating Partnership’s or Company’s fiscal quarter quarter, respectively, next following the “effective date” (as defined in said such Rule 158) of the Registration Statement.
(kj) The Company and the Operating PartnershipPartnership will use their commercially reasonable efforts to meet the requirements to qualify as a REIT and a partnership, if applicablerespectively, 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 ActAct Regulations in connection with sales of the Notes, will file all documents required to be filed with the Commission pursuant to Sections Section 13, 14 or 15 of the 1934 Act within the time periods required prescribed by the 1934 Act and the 1934 Act Regulations.
(l) The Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect to Preferred Stock, Depository Shares and Debt Securities, will use its commercially reasonable efforts to maintain the listing of any Underwritten Securities listed on the New York Stock Exchange.
(m) With respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable.
(o) Unless otherwise provided in the applicable Terms Agreement, during a period of 90 days from the date of the applicable Terms Agreement relating to Underwritten Securities, 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 transaction which is designed to, or might reasonably be expected to, result in the disposition during the period described in this subsection (l) (whether by actual disposition or effective 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, sell, offer to sell, grant any option for including the sale filing (or participation in the filing) of a registration statement with the Commission in respect of, enter into any agreement to sell), or otherwise dispose ofestablish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, (i) any other debt securities of the same class Operating Partnership or series; (ii) if such Terms Agreement relates to Preferred Stock that is the Company or any securities convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into exercisable or exchangeable for shares 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.
(m) The Company will use the net proceeds received by it from each sale of Common Stock. This transfer restriction does not apply to (i) Notes in the possible issuance of shares of Common Stock upon manner set forth in the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of options, Disclosure Package and the issuance Prospectus under the caption “Use of shares in Proceeds.”
(n) The Company will engage and maintain, at its expense, a Trustee for the Notes.
(o) In respect of such options, pursuant to a stock option plan; (iii) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter of the offering of the Underwritten Securities and the Company and Notes, the Operating Partnership, directly or indirectly, sell, offer Partnership will (i) execute a supplemental indenture designating the series of debt securities to sell, grant any option for be offered and its related terms and provisions in accordance with the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date provisions of the applicable Terms Agreement.
Indenture and (pii) If cause the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company Indenture to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable efforts to list the Common Stock on the New York Stock Exchange.
(r) The Company will use commercially reasonable efforts to continue to meet the requirements to qualify as a “real estate investment trust” be or remain qualified under the Code1939 Act.
(s) If the Registration Statement is an automatic shelf registration statement and the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, then the Company or the Operating Partnership, as applicable, will, prior to the third anniversary file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission;
Appears in 3 contracts
Samples: Underwriting Agreement (Tanger Properties LTD Partnership /Nc/), Underwriting Agreement (Tanger Properties LTD Partnership /Nc/), Underwriting Agreement (Tanger Properties LTD Partnership /Nc/)
Covenants of the Company and the Operating Partnership. Each of the Company and the Operating Partnership covenants with the Representatives, and with each Underwriter participating in the offering of Underwritten Securities, as follows:
(a) In respect to each offering of Underwritten Securities, the Company or the Operating Partnership, as the case may be, will furnish to the Underwriters named in the applicable Terms Agreement as many copies of the Time of Sale Prospectus and the Prospectus (including any Prospectus Supplement) as the Representatives shall reasonably request.
(b) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, file with the Commission and furnish, at their own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 430B of the 1933 Act Regulations, then immediately following the execution of the Terms Agreement, the Company and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplement, or, if required by such Rule 430A or 430B, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and the Operating Partnership will pay hereby jointly and severally covenant and agree with the registration fees for each offering of securities within Dealer Manager that:
3.1 The Company will: (a) use commercially reasonable efforts to cause the time period required by Rule 456(b)(1)(i) under the 1933 Act prior to the Closing Time. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than and any subsequent amendments thereto to become effective as promptly as possible; (b) promptly advise the date of execution of the Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(d) The Company and the Operating Partnership will notify the Representatives immediately, and confirm such notice in writing, of Dealer Manager (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 Act, (iii) the receipt of any comments from of, or requests for additional or supplemental information from, the Commission regarding the Registration Statement or the documents incorporated therein by referenceCommission, (ivii) of the time and date of any request by the Commission for filing of any post-effective amendment to the Registration Statement or any amendment or supplement to the Prospectus or any Time of Sale Prospectus or for additional informationProspectus, and (viii) the receipt by the Company or the Operating Partnership of any notice of objection of the Commission to the use of the Registration Statement or time and date that any post-effective amendment thereto pursuant to Rule 401(g)(2the Registration Statement becomes effective; (c) under timely file every amendment or supplement to the 1933 Act, and (vi) Registration Statement or the issuance Prospectus that may be required by the Commission of or under the Securities Act; and (d) if at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement or Statement, it will promptly notify the initiation of any proceedings for that purpose; and Dealer Manager and, to the extent the Company and determines such action is in the Operating Partnership will make every best interest of the Company, use its commercially reasonable effort to prevent the issuance of any such stop order and, if any stop order is issued, efforts to obtain the lifting thereof of such order at the earliest possible momenttime.
(e) The 3.2 In addition to and apart from the Prospectus, the Company and intends to use printed sales literature or other materials in connection with the Operating Partnership will deliver to the Representatives a copy of each proposed free writing prospectus to be Follow-On Offering prepared by or on behalf of, used by, or referred to by the Company and or Paladin Realty Advisors, LLC, a Delaware limited liability company that serves as the Operating Partnership and will not use Company’s advisor pursuant to the terms of an advisory agreement (the “Advisor”), which materials are generally described in the Prospectus. Such printed sales literature or refer to any proposed free writing prospectus that is reasonably objected to other materials prepared by the UnderwritersCompany and/or the Advisor, provided that the use of said sales literature and other materials has been approved for use by the Company in writing and all appropriate regulatory agencies, are referred to hereinafter as the “Authorized Sales Materials.
(f) The ” In the event that the Company and uses printed materials in connection with the Operating Partnership will not take any action that would result in an Underwriter, Follow-On Offering prepared by the Company or the Operating Partnership being required to file Advisor intended for “broker-dealer use only,” Dealer Manager shall use such “broker-dealer use only” materials in accordance with the Commission pursuant to Rule 433(d) under the 1933 Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunderSection 5.3 below.
(g) 3.3 The Company and the Operating Partnership will deliver will, at no expense to the Representatives as soon as possible as many signed Dealer Manager, furnish the Dealer Manager with such number of printed copies of the Registration Statement as originally filed Statement, including all amendments and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) thereto, as the Representatives Dealer Manager may reasonably request. The Company will similarly furnish to the Dealer Manager and others designated by the Dealer Manager as many copies as the Dealer Manager may reasonably request in connection with the Follow-On Offering of the Offered Shares of: (a) the Prospectus in preliminary and final form and every form of supplemental or amended prospectus; and (b) the Authorized Sales Materials.
3.4 The Company will also deliver use its commercially reasonable efforts to qualify the Offered Shares for offering and sale under, or to establish the exemption of the offering and sale of the Offered Shares from qualification or registration under, the applicable state securities or “blue sky” laws of each jurisdiction designated in Exhibit B hereto (the “Qualified Jurisdictions”) and to maintain such qualifications or exemptions in effect throughout the Follow-On Offering. In connection therewith, the Company will prepare and file all such post-sales filings or reports as may be required by the securities regulatory authorities in the Qualified Jurisdictions in which the Offered Shares have been sold, provided that the Dealer Manager shall have provided the Company with any information required for such filings or reports that is in the Dealer Manager’s possession. The Company will notify the Dealer Manager promptly following each date of: (a) the effectiveness of qualification or exemption of Offered Shares in any additional jurisdiction in which the offering and sale of Offered Shares has been authorized by appropriate state regulatory authorities; and (b) a change in the status of the qualification or exemption of the Offered Shares in any jurisdiction in any respect. The Company will file and obtain clearance of the Authorized Sales Material to the Representatives as many conformed copies extent required by applicable state securities laws. The Company will furnish to the Dealer Manager a copy of such papers filed by the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus) as the Representatives may reasonably requestCompany in connection with any such qualification.
(h) If, during such period after the first date of the public offering of the Underwritten Securities as the 3.5 If at any time when a Prospectus (or in lieu thereof the notice referred to in the Rule 173(a) under the 0000 Xxx) is required by law to be delivered in connection with sales by an Underwriter or dealer, under the Securities Act any event shall occur occurs as a result of which it is necessarywhich, in the reasonable opinion of counsel for the Underwriters, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so amended or supplementedCompany, the Prospectus will not would include an untrue statement of a material fact or omit omits to state a any material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it ( or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaserwhich they are made, not misleading, the Company will promptly notify the Dealer Manager thereof (unless the information shall have been received from the Dealer Manager) and the Company Dealer Manager and the Operating Partnership will furnish to Participating Dealers shall suspend the Underwriters a reasonable number of copies of such amendment or supplement.
(i) The Company and the Operating Partnership will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities for offering and sale under of the applicable securities laws Offered Shares in accordance with Section 5.3 hereof until such time as the Company, in its sole discretion (a) instructs the Dealer Manager to resume the offering and sale of the Offered Shares and (b) has prepared any required supplemental or amended prospectus as shall be necessary to correct such statement or omission and to comply with the requirements of Section 10 of the Securities Act.
3.6 The Company intends to satisfy the requirements of the Code for qualification of the Company as a real estate syndication laws of such states and other jurisdictions as the Representatives may reasonably designateinvestment trust. In each jurisdiction in which the Underwritten Securities have been so qualified, the Company and the Operating Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities.
(j) With respect to each sale of Underwritten Securities, the Company and the Operating Partnership will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined in said Rule 158) of the Registration Statement.
(k) The Company and the Operating Partnership, if applicable, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(l) The Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect elect to Preferred Stock, Depository Shares and Debt Securities, will use its commercially reasonable efforts to maintain the listing of any Underwritten Securities listed on the New York Stock Exchange.
(m) With respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture be treated as a real estate investment trust under the 1939 Act Code at such time as it so qualifies and will endeavor to have a Statement of Eligibility submitted on behalf direct the investment of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable.
(o) Unless otherwise provided in the applicable Terms Agreement, during a period of 90 days from the date of the applicable Terms Agreement relating to Underwritten Securities, the Company and the Operating Partnership will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; (ii) if such Terms Agreement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of options, and the issuance of shares in respect of such options, pursuant to a stock option plan; (iii) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter proceeds of the offering of the Underwritten Securities Offered Shares in such a manner, and will exercise reasonable diligence to operate the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date business of the applicable Terms AgreementCompany, so as to comply with such requirements.
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable efforts to list the Common Stock on the New York Stock Exchange.
(r) 3.7 The Company will use commercially reasonable efforts to continue to meet apply the requirements to qualify proceeds from the sale of the Offered Shares as a “real estate investment trust” under stated in the CodeProspectus.
3.8 The Company will engage and maintain, at its expense, a registrar and transfer agent for the Offered Shares.
3.9 The parties hereto acknowledge and agree that the Advisor may, from time to time, employ and compensate persons to assist in the marketing of the Offered Shares (sthe “Related Persons”); provided, however, that: (a) If the Registration Statement is an automatic shelf registration statement employment of such Related Persons shall be approved in advance by the Dealer Manager, in its sole discretion; (b) the employment of each such Related Persons by the Advisor shall be conditioned upon the existence of a written associated person agreement between such Related Person and the third anniversary Dealer Manager; and (c) the Dealer Manager shall periodically reimburse the Advisor for the amount of the initial effective date of the Registration Statement occurs before all of the Securities have been sold compensation and benefits paid by the UnderwritersAdvisor to such Related Persons, then which reimbursement will not exceed the Company or the Operating Partnership, as applicable, will, prior to the third anniversary file a new shelf registration statement actual amount of compensation and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective benefits paid by the Commission;Advisor.
Appears in 2 contracts
Samples: Dealer Manager Agreement (Paladin Realty Income Properties Inc), Dealer Manager Agreement (Paladin Realty Income Properties Inc)
Covenants of the Company and the Operating Partnership. Each of the Company and the Operating Partnership covenants with the Representatives, and with each Underwriter participating in the offering of Underwritten Securities, as follows:
(a) In respect to each offering of Underwritten Securities, the Company or the Operating Partnership, as the case may be, will furnish to the Underwriters named in the applicable Terms Agreement as many copies of the Time of Sale Prospectus and the Prospectus (including any Prospectus Supplement) as the Representatives shall reasonably request.
(b) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, file with the Commission and furnish, at their own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 430B of the 1933 Act Regulations, then immediately following the execution of the Terms Agreement, the Company and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplement, or, if required by such Rule 430A or 430B, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and the Operating Partnership will pay the registration fees for each offering of securities within the time period required by Rule 456(b)(1)(i) under the 1933 Act prior to the Closing Time. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than the date of execution of the Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(d) The Company and the Operating Partnership will notify the Representatives immediately, and confirm such notice in writing, of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 Act, (iii) the receipt of any comments from the Commission regarding the Registration Statement or the documents incorporated therein by reference, (iv) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or any Time of Sale Prospectus or for additional information, and (v) the receipt by the Company or the Operating Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act, and (vi) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; and the Company and the Operating Partnership will make every reasonable effort to prevent the issuance of any such stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(e) The Company and the Operating Partnership will deliver to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and the Operating Partnership and will not use or refer to any proposed free writing prospectus that is reasonably objected to by the Underwriters.
(f) The Company and the Operating Partnership will not take any action that would result in an Underwriter, the Company or the Operating Partnership being required to file with the Commission pursuant to Rule 433(d) under the 1933 Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(g) The Company and the Operating Partnership will deliver to the Representatives as soon as possible as many signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) as the Representatives may reasonably request and will also deliver to the Representatives as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus) as the Representatives may reasonably request.
(h) If, during such period after the first date of the public offering of the Underwritten Securities as the Prospectus (or in lieu thereof the notice referred to in the Rule 173(a) under the 0000 Xxx) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriters, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it ( or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, not misleading, and the Company and the Operating Partnership will furnish to the Underwriters a reasonable number of copies of such amendment or supplement.
(i) The Company and the Operating Partnership will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions as the Representatives may reasonably designate. In each jurisdiction in which the Underwritten Securities have been so qualified, the Company and the Operating Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities.
(j) With respect to each sale of Underwritten Securities, the Company and the Operating Partnership will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined in said Rule 158) of the Registration Statement.
(k) The Company and the Operating Partnership, if applicable, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(l) The Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect to Preferred Stock, Depository Shares and Debt Securities, will use its commercially reasonable efforts to maintain the listing of any Underwritten Securities listed on the New York Stock Exchange.
(m) With respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable.
(o) Unless otherwise provided in the applicable Terms Agreement, during a period of 90 days from the date of the applicable Terms Agreement relating to Underwritten Securities, the Company and the Operating Partnership will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; series or ranking on a parity with such Underwritten Securities (other than the Underwritten Securities that are the subject of the Terms Agreement or any security convertible into or exchangeable for shares of such Underwritten Securities and (ii) if such Terms Agreement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of options, and the issuance of shares in respect of such options, pursuant to a stock option plan; (iii) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter of the offering of the Underwritten Securities and the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date of the applicable Terms Agreement.
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable efforts to list the Common Stock on the New York Stock Exchange.
(r) The Company will use commercially reasonable efforts to continue to meet the requirements to qualify as a “real estate investment trust” under the Code.
(s) If the Registration Statement is an automatic shelf registration statement and the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, then the Company or the Operating Partnership, as applicable, will, prior to the third anniversary file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission;
Appears in 2 contracts
Samples: Terms Agreement (Duke Realty Corp), Terms Agreement (Duke Realty Limited Partnership/)
Covenants of the Company and the Operating Partnership. Each of the Company and the Operating Partnership covenants with the Representatives, and with each Underwriter participating in the offering of Underwritten Securities, as follows:
(a) In respect to each offering of Underwritten Securities, the Company or the Operating Partnership, as the case may be, will prepare a Prospectus Supplement setting forth the number of Underwritten Securities covered thereby and their terms not otherwise specified in the Prospectus pursuant to which the Underwritten Securities are being issued, the names of the Underwriters participating in the offering and the number of Underwritten Securities which each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, the price at which the Underwritten Securities are to be purchased by the Underwriters from the Company or the Operating Partnership, as the case may be, the initial public offering price, if any, the selling concession and reallowance, if any, and such other information as the Representatives and the Company or the Operating Partnership, as the case may be, deem appropriate in connection with the offering of the Underwritten Securities; and the Company or the Operating Partnership, as the case may be, will promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations and will furnish to the Underwriters named in the applicable Terms Agreement therein as many copies of the Time of Sale Prospectus and the Prospectus (including any such Prospectus Supplement) as the Representatives shall reasonably request.
(b) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, file with the Commission and furnish, at their own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 430B of the 1933 Act Regulations, then immediately following the execution of the Terms Agreement, the Company and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, 430A and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplementcopy of an amended Prospectus, or, if required by such Rule 430A or 430B430A, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and the Operating Partnership will pay the registration fees for each offering of securities within the time period required by Rule 456(b)(1)(i) under the 1933 Act prior to the Closing Time. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than the date of execution of the Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(dc) The Company and the Operating Partnership will notify the Representatives immediately, and confirm such notice in writing, of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 Act, (iii) the receipt of any comments from the Commission regarding the Registration Statement or the documents incorporated therein by referenceCommission, (iv) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or any Time of Sale Prospectus or for additional information, and (v) the receipt by the Company or the Operating Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act, and (vi) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; and the Company and the Operating Partnership will make every reasonable effort to prevent the issuance of any such stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(ed) The At any time when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, the Company and the Operating Partnership will deliver give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement or any amendment or supplement to the Prospectus, whether pursuant to the 1933 Act, 1934 Act or otherwise, will furnish the Representatives with copies of any such amendment or supplement a copy reasonable amount of each time prior to such proposed free writing prospectus to be prepared filing and, unless required by or on behalf oflaw, used by, or referred to by the Company and the Operating Partnership and will not file or use any such amendment or refer supplement or other documents in a form to any proposed free writing prospectus that is which the Representatives or counsel for the Underwriters shall reasonably objected to by the Underwritersobject.
(f) The Company and the Operating Partnership will not take any action that would result in an Underwriter, the Company or the Operating Partnership being required to file with the Commission pursuant to Rule 433(d) under the 1933 Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(ge) The Company and the Operating Partnership will deliver to the Representatives as soon as possible as many signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) as the Representatives may reasonably request and will also deliver to the Representatives as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus) as the Representatives may reasonably request.
(hf) IfThe Company and the Operating Partnership will furnish to each Underwriter, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such period after the first date number of the public offering copies of the Underwritten Securities as the Prospectus (as amended or in lieu thereof supplemented) as such Underwriter may reasonably request for the notice referred to in purposes contemplated by the Rule 173(a1933 Act or the 1934 Act or the respective applicable rules and regulations of the Commission thereunder.
(g) under the 0000 Xxx) is required by law to be delivered in connection with sales by an Underwriter or dealer, If any event shall occur as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriters, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it ( or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, not misleading, and the Company and the Operating Partnership will furnish to the Underwriters a reasonable number of copies of such amendment or supplement.
(ih) The Company and the Operating Partnership will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions as the Representatives may reasonably designate. In each jurisdiction in which the Underwritten Securities have been so qualified, the Company and the Operating Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities.
(ji) With respect to each sale of Underwritten Securities, the Company and the Operating Partnership will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of the Company’s 's fiscal quarter next following the “"effective date” " (as defined in said Rule 158) of the Registration Statement.
(j) Each of the Company and the Operating Partnership will use the net proceeds received by it from the sale of the Underwritten Securities in the manner specified in the Prospectus under "Use of Proceeds."
(k) The Company and the Operating Partnership, if applicable, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(l) The Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect to Preferred Stock, Depository Shares and Debt Securities, will use its commercially reasonable best efforts to maintain the listing of any Underwritten Securities listed on the New York Stock Exchange.
(m) With In respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services 's Corporation (“"S&P”"), Xxxxx’x Xxxxx'x Investors Service, Inc. (“Xxxxx’x”"Xxxxx'x") or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable.
(o) Unless otherwise provided in the applicable Terms Agreement, during During a period of 90 45 days from the date of the applicable Terms Agreement relating to Underwritten Securitiesany Prospectus Supplement, the Company and the Operating Partnership will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; series or ranking on a parity with any Underwritten Securities (other than the Underwritten Securities covered by such Prospectus Supplement) or any security convertible into or exchangeable for shares of such Underwritten Securities and (ii) if such Terms Agreement Prospectus Supplement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than DMI Partnership (except as to Units exchanged by DMI Partnership pursuant to a Unit bonus plan for employees of the Company and its subsidiaries) and the directors and executive officers of the Company; (ii) grants of options, and the issuance of shares in respect of such options, pursuant to a stock option plan; (iii) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter of the offering of the Underwritten Securities Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 9045-day period from the date of the applicable Terms Agreementany Prospectus Supplement.
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable its best efforts to list the Common Stock on the New York Stock Exchange.
(r) The Company will use commercially reasonable its best efforts to continue to meet the requirements to qualify as a “"real estate investment trust” " under the Code.
(s) If During the Registration Statement is an automatic shelf registration statement period from the Closing Time until five years after the Closing Time, the Company and the third anniversary Operating Partnership will deliver to the Representatives, (i) promptly upon their becoming available, copies of all current, regular and periodic reports of the initial effective date Company mailed to its stockholders or filed with any securities exchange or with the Commission or any governmental authority succeeding to any of the Registration Statement occurs before all of the Securities have been sold by the UnderwritersCommission's functions, then and (ii) such other information concerning the Company or and the Operating Partnership, Partnership as applicable, will, prior to the third anniversary file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission;Representatives may reasonably request.
Appears in 2 contracts
Samples: Underwriting Agreement (Duke Realty Investments Inc), Underwriting Agreement (Duke Realty Investments Inc)
Covenants of the Company and the Operating Partnership. Each of the Company and the Operating Partnership covenants with the Representatives, and with each Underwriter participating in the offering of Underwritten Securities, as follows:
(a) In respect to each offering of Underwritten Securities, the Company or the Operating Partnership, as the case may be, will furnish to the Underwriters named in the applicable Terms Agreement as many copies of the Time of Sale Prospectus and the Prospectus (including any Prospectus Supplement) as the Representatives shall reasonably request.
(b) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, file with the Commission and furnish, at their own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 430B of the 1933 Act Regulations, then immediately following the execution of the Terms Agreement, the Company and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplement, or, if required by such Rule 430A or 430B, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and the Operating Partnership will pay the registration fees for each offering of securities within the time period required by Rule 456(b)(1)(i) under the 1933 Act prior to the Closing Time. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than the date of execution of the Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(d) The Company and the Operating Partnership will notify the Representatives immediately, and confirm such notice in writing, of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 Act, (iii) the receipt of any comments from the Commission regarding the Registration Statement or the documents incorporated therein by reference, (iv) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or any Time of Sale Prospectus or for additional information, (v) the receipt by the Company or the Operating Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act, and (vi) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; and the Company and the Operating Partnership will make every reasonable effort to prevent the issuance of any such stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(e) The Company and the Operating Partnership will deliver to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and the Operating Partnership and will not use or refer to any proposed free writing prospectus that is reasonably objected to by the Underwriters.
(f) The Company and the Operating Partnership will not take any action that would result in an Underwriter, the Company or the Operating Partnership being required to file with the Commission pursuant to Rule 433(d) under the 1933 Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(g) The Company and the Operating Partnership will deliver to the Representatives as soon as possible as many signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) as the Representatives may reasonably request and will also deliver to the Representatives as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus) as the Representatives may reasonably request.
(h) If, during such period after the first date of the public offering of the Underwritten Securities as the Prospectus (or in lieu thereof the notice referred to in the Rule 173(a) under the 0000 Xxx1933 Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriters, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it ( (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, not misleading, and the Company and the Operating Partnership will furnish to the Underwriters a reasonable number of copies of such amendment or supplement.
(i) The Company and the Operating Partnership will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions as the Representatives may reasonably designate. In each jurisdiction in which the Underwritten Securities have been so qualified, the Company and the Operating Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities.
(j) With respect to each sale of Underwritten Securities, the Company and the Operating Partnership will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined in said Rule 158) of the Registration Statement.
(k) The Company and the Operating Partnership, if applicable, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(l) The Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect to Preferred Stock, Depository Shares and Debt Securities, will use its commercially reasonable efforts to maintain the listing of any Underwritten Securities listed on the New York Stock Exchange.
(m) With respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable.
(o) Unless otherwise provided in the applicable Terms Agreement, during a period of 90 days from the date of the applicable Terms Agreement relating to Underwritten Securities, the Company and the Operating Partnership will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; and (ii) if such Terms Agreement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of optionsshares of restricted stock, restricted stock units, options or other similar securities pursuant to employee or director equity plans existing on the date of such Terms Agreement, and the issuance of shares in respect of the conversion or exercise of any such options, pursuant to a stock option plansecurities; (iii) the issuance of shares pursuant to a dividend reinvestment plan, including the Company’s Direct Stock Purchase and Dividend Reinvestment Plan; (iv) the issuance of shares pursuant to an employee stock purchase plan; and (ivv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter of the offering of the Underwritten Securities and the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date of the applicable Terms Agreement.
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable efforts to list the Common Stock on the New York Stock Exchange.
(r) The Company will use commercially reasonable efforts to continue to meet the requirements to qualify as a “real estate investment trust” under the Code.
(s) If the Registration Statement is an automatic shelf registration statement and the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, then the Company or the Operating Partnership, as applicable, will, prior to the third anniversary file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission;
Appears in 2 contracts
Samples: Terms Agreement (Duke Realty Limited Partnership/), Terms Agreement (Duke Realty Limited Partnership/)
Covenants of the Company and the Operating Partnership. Each of the Company and the Operating Partnership covenants with the Representativesyou, and with each Underwriter participating in the offering of Underwritten Securities, as follows:
(a) In respect to each offering Immediately following the execution of Underwritten Securitiesthe applicable Terms Agreement, the Company or will prepare a Prospectus Supplement setting forth the Operating Partnershipnumber of Underwritten Securities covered thereby and their terms not otherwise specified in the Prospectus pursuant to which the Underwritten Securities are being issued, as the case may be, will furnish to names of the Underwriters named participating in the offering and the number of Underwritten Securities that each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, the price at which the Underwritten Securities are to be purchased by the Underwriters from the Company, the initial public offering price, if any, the selling concession and reallowance, if any, any delayed delivery arrangements, and such other information as you and the Company deem appropriate in connection with the offering of the Underwritten Securities; and the Company will, by the close of business at the Commission on the business day immediately succeeding the date of the applicable Terms Agreement as many Agreement, transmit copies of the Time of Sale Prospectus and the Prospectus (including any Prospectus Supplement) as the Representatives shall reasonably request.
(b) If the Time of Sale Prospectus is being used Supplement to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, file with the Commission and furnish, at their own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed with the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations, any information Regulations and will furnish to the Underwriters named therein as many copies of the Prospectus (including such Prospectus Supplement) as you shall have been omitted therefrom in reliance upon reasonably request. If the Company elects to rely on Rule 430A or Rule 430B of 434 under the 1933 Act Regulations, then immediately following the execution Company will prepare an abbreviated term sheet that complies with the requirements of Rule 434 under the 1933 Act Regulations and will provide the Underwriters with copies of the Terms Agreementform of Rule 434 Prospectus, in such number as the Company and the Operating Partnership will prepareUnderwriters may reasonably request, and file or transmit for filing with the Commission the form of Prospectus complying with Rule 434(c)(2) of the 1933 Act Regulations in accordance with such Rule 430A, 430B, and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplement, or, if required Regulations by such Rule 430A or 430B, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and close of business on the Operating Partnership will pay the registration fees for each offering of securities within the time period required by Rule 456(b)(1)(i) under the 1933 Act prior to the Closing Time. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than business day immediately succeeding the date of execution of the applicable Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(db) The Company and the Operating Partnership will notify the Representatives you immediately, and confirm such notice in writing, of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus or any document to be filed pursuant to the 1933 1934 Act, (iii) the receipt of any comments from the Commission regarding the Registration Statement or the documents incorporated therein by referenceCommission, (iv) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or any Time of Sale Prospectus or for additional information, and (v) the receipt by the Company or the Operating Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act, and (vi) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; and the . The Company and the Operating Partnership will make every reasonable effort to prevent the issuance of any such stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(ec) The Company and At any time when the Operating Partnership will deliver to the Representatives a copy of each proposed free writing prospectus Prospectus is required to be prepared by or on behalf of, used by, or referred to by the Company and the Operating Partnership and will not use or refer to any proposed free writing prospectus that is reasonably objected to by the Underwriters.
(f) The Company and the Operating Partnership will not take any action that would result in an Underwriter, the Company or the Operating Partnership being required to file with the Commission pursuant to Rule 433(d) delivered under the 1933 Act a free writing prospectus prepared by or on behalf the 1934 Act in connection with sales of the Underwriter Underwritten Securities, the Company will give you notice of its intention to file or prepare any amendment to the Registration Statement or any amendment or supplement to the Prospectus, whether pursuant to the 1933 Act, 1934 Act or otherwise (including any revised Prospectus which the Company proposes for use by the Underwriters in connection with an offering of Underwritten Securities that differs from the Underwriter otherwise would Prospectus on file at the Commission at the time the Registration Statement first becomes effective, whether or not have been such revised Prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act Regulations, or any abbreviated term sheet prepared in reliance on Rule 434 of the 1933 Act Regulations), and will furnish you with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or preparation, as the case may be, and will not file thereunderor prepare any such amendment or supplement or other documents in a form to which you or counsel for the Underwriters shall reasonably object.
(gd) The Company and the Operating Partnership will deliver to the Representatives as soon as possible each Underwriter 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 such Underwriter reasonably requests.
(e) The Company will furnish to each Underwriter, from time to time during the Representatives period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request and will also deliver to for the Representatives as many conformed copies of purposes contemplated by the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into 1933 Act, the Prospectus) as 1933 Act Regulations, the Representatives may reasonably request1934 Act or the 1934 Act Regulations.
(hf) If, during such period after If at any time when the first date of Prospectus is required to be delivered under the public offering 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities as the Prospectus (or in lieu thereof the notice referred to in the Rule 173(a) under the 0000 Xxx) 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, in the reasonable opinion of counsel for the UnderwritersUnderwriters or counsel for the Company, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so amended or supplemented, that the Prospectus will not include an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein not misleading in the light of the circumstances existing at the time it ( or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, not misleadingor if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend or supplement the Registration Statement or the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, then the Company will promptly prepare and file with the Commission such amendment or supplement, whether by filing documents pursuant to the 1933 Act, the 1934 Act or otherwise, as may be necessary to correct such untrue statement or omission or to make the Registration Statement and Prospectus comply with such requirements, and the Company and the Operating Partnership will furnish to the Underwriters a reasonable number of copies of such amendment or supplement.
(ig) The Company and the Operating Partnership will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities Securities, the Warrant Securities, if any, and Common Shares issuable upon conversion of the Preferred 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 Representatives you may reasonably designate. In each jurisdiction in which the Underwritten Securities Securities, the Warrant Securities, if any, and Common Shares issuable upon conversion of the Preferred Shares have been so qualified, the Company and the Operating Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities and the Warrant Securities; provided, however, that the Company shall not be obligated to (A) qualify as a foreign entity in any jurisdiction where it is not so qualified, (B) file any general consent to service of process, or (C) take any action that would subject it to income taxation in any such jurisdiction.
(jh) With respect to each sale of Underwritten Securities, the Company and the Operating Partnership will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-twelve month period beginning not later than the first day of the Company’s 's fiscal quarter next following the “"effective date” " (as defined in said such Rule 158) of the Registration Statement.
(ki) The Company and will use its best efforts to meet the Operating Partnership, if applicablerequirements to qualify as a "real estate investment trust" under the Code for the taxable year in which sales of the Underwritten Securities are to occur.
(j) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 ActAct in connection with sales of the Underwritten Securities, will file all documents required to be filed with the Commission pursuant to Sections Section 13, 14 or 15 of the 1934 Act within the time periods required prescribed by the 1934 Act and the 1934 Act Regulations.
(l) The Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect to Preferred Stock, Depository Shares and Debt Securities, will use its commercially reasonable efforts to maintain the listing of any Underwritten Securities listed on the New York Stock Exchange.
(m) With respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable.
(o) Unless otherwise provided in the applicable Terms Agreement, during a period of 90 days from the date of the applicable Terms Agreement relating to Underwritten Securities, the Company and the Operating Partnership will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; (ii) if such Terms Agreement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of options, and the issuance of shares in respect of such options, pursuant to a stock option plan; (iii) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter of the offering of the Underwritten Securities and the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date of the applicable Terms Agreement.
(pk) If the Preferred Stock is Shares are convertible into Common StockShares, the Company will reserve and keep available at all times, free of preemptive rights and or other similar rights, a sufficient number of shares of Common Stock Shares for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock shares upon conversion of the Preferred StockShares, as the case may be, or upon the exercise of the Common Share Warrants.
(ql) If the Preferred Stock is convertible into Common Stockapplicable, the Company will use commercially reasonable its best efforts to list the Common Stock Shares on the New York Stock ExchangeExchange or such other national exchange on which the Company's Common Shares are then listed.
(rm) The If Preferred Shares are convertible into Common Shares, the Company will use commercially reasonable its best efforts to continue to meet list the requirements to qualify as a “real estate investment trust” under the Code.
(s) If the Registration Statement is an automatic shelf registration statement and the third anniversary Common Shares issuable on Conversion of the initial effective date of Preferred Shares on the Registration Statement occurs before all of New York Stock Exchange or such other national exchange on which the Securities have been sold by the Underwriters, Company's Common Shares are then the Company or the Operating Partnership, as applicable, will, prior to the third anniversary file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission;listed.
Appears in 2 contracts
Samples: Underwriting Agreement (Colonial Properties Trust), Underwriting Agreement (Colonial Properties Trust)
Covenants of the Company and the Operating Partnership. Each of the Company and the Operating Partnership Partnership, jointly and severally, covenants with the Representativesyou, and with each Underwriter participating in the offering of Underwritten Securitiesthe Notes, as follows:
(a) In respect The Operating Partnership will comply, subject to each the remainder of this clause (a), with the requirements of Rule 430B. Prior to the termination of the offering of Underwritten Securitiesthe Notes, the Company or the Operating Partnership, as the case may be, will furnish to the Underwriters named in the applicable Terms Agreement as many copies of the Time of Sale Prospectus and the Prospectus (including any Prospectus Supplement) as the Representatives shall reasonably request.
(b) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, not use or file with the Commission and furnish, at their own expense, any amendment to the Underwriters and to any dealer upon request, either amendments Registration Statement or supplements amendment or supplement to the Time Disclosure Package or the Prospectus or any new registration statement relating to the Notes unless the Operating Partnership 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 Operating Partnership has given the Representatives notice of Sale Prospectus so that any filings made pursuant to the statements in 1934 Act or 1934 Act Regulations within 48 hours prior to the Time of Sale Prospectus as so amended or supplemented Applicable Time. The Operating Partnership will not, in cause the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplementedproperly completed, will no longer conflict with and any supplement thereto to be filed in a form to which the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed Representatives shall not have reasonably objected with the Commission pursuant to Rule the applicable paragraph of 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 430B of the 1933 Act Regulations, then immediately following the execution of the Terms Agreement, the Company and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplement, or, if required by such Rule 430A or 430B, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and the Operating Partnership will pay the registration fees for each offering of securities within the time period required by Rule 456(b)(1)(i) under the 1933 Act prior prescribed and will provide evidence satisfactory to the Closing TimeRepresentatives of such timely filing. If required, the Company and the The Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than the date of execution of the Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(d) The Company and the Operating Partnership will notify promptly advise the Representatives immediately, and confirm such notice in writing, (a) of (i) the effectiveness of any amendment to the Registration StatementStatement or any new registration statement relating to the Notes, (iib) of the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus or any document to be filed pursuant to the 1933 1934 Act, (iiic) of the receipt of any comments from the Commission regarding with respect to the Registration Statement or the Prospectus or documents incorporated therein or deemed to be incorporated by referencereference therein, (ivd) 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 Time stop order by the Commission suspending the effectiveness of Sale 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 additional informationthat purpose or of any examination pursuant to Section 8(d) or 8(e) of the 1933 Act concerning the Registration Statement, (vf) 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 effectiveness. References herein to the “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 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 1933 Act, any event or development occurs as a result of which, in the opinion of counsel for the Underwriters or for the Operating Partnership, the Registration Statement or the Prospectus would include any untrue statement of a material fact or omit to state any material fact 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, 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 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 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 in order to make the statements therein, in the light of the circumstances existing at the time it is used, not misleading, the Operating Partnership and the Company promptly will (1) notify the Representatives of any such event or development, (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 Underwriters or for Operating Partnership, conflicted or would conflict with the information contained in the Registration Statement (or any other registration statement relating to the Notes), the Statutory Prospectus or the Prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the 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 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 “free writing prospectus” (as defined in Rule 405), required to be filed by the Company or the Operating Partnership of any notice of objection of with the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act, and (vi) the issuance retained by the Commission of any stop order suspending the effectiveness of the Registration Statement Company or the initiation of any proceedings for that purpose; and the Company and 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 make every reasonable effort 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 prevent any Permitted Free Writing Prospectus, including in respect of timely filing with the issuance Commission, legending and record keeping. The Operating Partnership will furnish to the Underwriters, without charge, copies of any such stop order anddocuments a reasonable amount of time prior to such proposed filing or use, if any stop order is issuedas the case may be, to obtain the lifting thereof at the earliest possible moment.
(e) The Company and the Operating Partnership will deliver to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and the Operating Partnership and will not file or use any such documents to which the Underwriters or refer to any proposed free writing prospectus that is counsel for the Underwriters shall reasonably objected to by the Underwritersobject.
(f) The Company and the Operating Partnership have furnished or will not take any action that would result in an furnish to each Underwriter, the Company or the Operating Partnership being required to file with the Commission pursuant to Rule 433(d) under the 1933 Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(g) The Company and the Operating Partnership will deliver to the Representatives as soon as possible 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 Representatives may such Underwriter reasonably request and will also deliver to the Representatives as many conformed copies of the requests. The Registration Statement as originally filed and of each amendment thereto (including documents incorporated 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 reference into the Prospectus) as the Representatives may reasonably request.Regulation S-T.
(hg) IfThe Company and the Operating Partnership will furnish, without charge, to each Underwriter, from time to time during such the period after the first date of the public offering of the Underwritten Securities as when the Prospectus (or or, in lieu thereof the notice referred to in the Rule 173(a) under the 0000 Xxx) is required by law to be delivered in connection with sales by an Underwriter or dealerthereof, any event shall occur as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriters, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it (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, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so amended or supplemented1933 Act Regulations, the Prospectus will not include an untrue statement of a material fact 1934 Act or omit to state a material fact necessary the 1934 Act Regulations in order to make the statements therein, in the light connection with sales of the circumstances existing at the time it ( or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaserNotes, not misleading, and the Company and the Operating Partnership will furnish to the Underwriters a reasonable such number of copies of the Prospectus (as amended or supplemented) as such amendment Underwriter may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or supplement.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.
(ih) The Company and the Operating Partnership will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities 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. In ; and in each jurisdiction in which the Underwritten Securities Notes have been so qualified, the Company Operating Partnership and the Operating Partnership Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten SecuritiesNotes; 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.
(ji) With respect to each sale of Underwritten SecuritiesNotes, the Company and the Operating Partnership and the Company will each make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-twelve month period beginning not later than the earlier of the first day of the Operating Partnership’s or Company’s fiscal quarter quarter, respectively, next following the “effective date” (as defined in said such Rule 158) of the Registration Statement.
(kj) The Company and the Operating PartnershipPartnership will use their commercially reasonable efforts to meet the requirements to qualify as a REIT and a partnership, if applicablerespectively, 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 ActAct Regulations in connection with sales of the Notes, will file all documents required to be filed with the Commission pursuant to Sections Section 13, 14 or 15 of the 1934 Act within the time periods required prescribed by the 1934 Act and the 1934 Act Regulations.
(l) The Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect to Preferred Stock, Depository Shares and Debt Securities, will use its commercially reasonable efforts to maintain the listing of any Underwritten Securities listed on the New York Stock Exchange.
(m) With respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable.
(o) Unless otherwise provided in the applicable Terms Agreement, during a period of 90 days from the date of the applicable Terms Agreement relating to Underwritten Securities, 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 transaction which is designed to, or might reasonably be expected to, result in the disposition during the period described in this subsection (l) (whether by actual disposition or effective 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, sell, offer to sell, grant any option for including the sale filing (or participation in the filing) of a registration statement with the Commission in respect of, enter into any agreement to sell), or otherwise dispose ofestablish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, (i) any other debt securities of the same class Operating Partnership or series; (ii) if such Terms Agreement relates to Preferred Stock that is the Company or any securities convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into exercisable or exchangeable for shares 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.
(m) The Company will use the net proceeds received by it from each sale of Common Stock. This transfer restriction does not apply to (i) Notes in the possible issuance of shares of Common Stock upon manner set forth in the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of options, Disclosure Package and the issuance Prospectus under the caption “Use of shares in Proceeds.”
(n) The Company will engage and maintain, at its expense, a Trustee for the Notes.
(o) In respect of such options, pursuant to a stock option plan; (iii) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter of the offering of the Underwritten Securities and the Company and Notes, the Operating Partnership, directly or indirectly, sell, offer Partnership will (i) execute a supplemental indenture designating the series of debt securities to sell, grant any option for be offered and its related terms and provisions in accordance with the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date provisions of the applicable Terms Agreement.
Indenture and (pii) If cause the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company Indenture to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable efforts to list the Common Stock on the New York Stock Exchange.
(r) The Company will use commercially reasonable efforts to continue to meet the requirements to qualify as a “real estate investment trust” be or remain qualified under the Code1939 Act.
(s) If the Registration Statement is an automatic shelf registration statement and the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, then the Company or the Operating Partnership, as applicable, will, prior to the third anniversary file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission;
Appears in 2 contracts
Samples: Underwriting Agreement (Tanger Properties LTD Partnership /Nc/), Underwriting Agreement (Tanger Properties LTD Partnership /Nc/)
Covenants of the Company and the Operating Partnership. Each of the The Company and the Operating Partnership covenants covenant with the Representatives, and with each Underwriter participating in the offering of Underwritten Securities, Agents as follows:
(a) In respect to each offering of Underwritten Securities, the The Company or the Operating Partnership, as the case may be, will furnish to the Underwriters named in the applicable Terms Agreement as many copies of the Time of Sale Prospectus and the Prospectus (including any Prospectus Supplement) as the Representatives shall reasonably request.
(b) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, file with the Commission and furnish, at their own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale each Statutory Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed with the Commission pursuant to and in accordance with Rule 424(b) within the time period prescribed therein. Prior to the termination of the 1933 Act Regulations, offering of any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 430B issue of the 1933 Act Regulations, then immediately following the execution of the Terms AgreementSecurities, the Company and the Operating Partnership will prepare, and not file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplement, or, if required by such Rule 430A or 430B, a post-effective any amendment to the Registration Statement or supplement to the Prospectus or Statutory Prospectus (including amended Prospectusesexcept for a supplement relating to an offering of securities other than the Securities) unless the Company and the Operating Partnership have furnished to the related Agent(s) a copy for their review prior to filing and will not file any such proposed amendment or supplement to which such Agent(s) may reasonably object. Subject to the foregoing sentence, the Company and the Operating Partnership will cause each supplement to the Prospectus or Statutory Prospectus to be filed (or mailed for filing) with the Commission as required pursuant to Rule 424 of the 1933 Act Regulations (without reliance on Rule 424(b)(8), containing all information so omitted). The Company and the Operating Partnership will pay promptly advise such Agent(s) (i) when each supplement to the registration fees Prospectus or Statutory Prospectus shall have been filed (or mailed for each offering filing) with the Commission pursuant to Rule 424 of securities within the time period required by Rule 456(b)(1)(i) under the 1933 Act prior to Regulations (the Closing Time. If required, filing of any such supplement on XXXXX shall be deemed notice by the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(bto the Agents), (ii) when any amendment to the Registration Statement not later than shall have become effective (for so long as the date of execution of the Terms Agreement. If a Rule 462(b) Registration Statement is filedan “automatic shelf registration statement” within the meaning of Rule 405, the filing of any such amendment on XXXXX shall be deemed notice of effectiveness by the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(d) The Company and the Operating Partnership will notify the Representatives immediately, and confirm such notice in writing, of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 ActAgents), (iii) the receipt of any comments from the Commission regarding the Registration Statement or the documents incorporated therein by reference, (iv) any request by the Commission for any amendment to the Registration Statement or any amendment to or supplement to the Prospectus or any Time of Sale Statutory Prospectus or for any additional information, (viv) the receipt by the Company or the Operating Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act, and (vi) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation institution or threatening of any proceedings proceeding for that purpose; purpose or of any examination pursuant to Section 8(e) of the 1933 Act with respect to the Registration Statement, (v) if the Company or the Operating Partnership becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities, (vi) of the receipt by the Company or the Operating Partnership of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and (vii) any change in the rating assigned by any nationally recognized statistical rating organization to any debt securities of the Company or the public announcement by any nationally recognized statistical rating organization that it has under surveillance or review, with possible negative implications, its rating of any debt securities of the Company. The Company and the Operating Partnership will make every reasonable effort use their best efforts to prevent the issuance of any such stop order and, if any stop order is issued, to obtain as soon as possible the lifting thereof at withdrawal thereof. The Company and the earliest possible momentOperating Partnership shall pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1)(i) of the 1933 Act Regulations 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) of the 1933 Act Regulations either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)).
(eb) The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405, that initially became effective within three years of the date hereof. If immediately prior to the third anniversary (the “Renewal Deadline”) of the initial effective date of the automatic shelf registration statement relating to the Securities, any of the Securities remain unsold by the Agent(s), the Company and the Operating Partnership will, prior to the Renewal Deadline, file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Securities, in a form satisfactory to the Agents. If the Company and the Operating Partnership are no longer eligible to file an automatic shelf registration statement, the Company and the Operating Partnership will, prior to the Renewal Deadline, if they have not already done so, file a new shelf registration statement relating to the Securities, in a form satisfactory to the Agents, and will use their best efforts to cause such registration statement to be declared effective within 180 days after the Renewal Deadline. The Company and the Operating Partnership will deliver take all other action necessary or appropriate to permit the public offering and sale of the Securities to continue as contemplated in the expired registration statement relating to the Representatives a copy of each proposed free writing prospectus Securities. References herein to be prepared by the Registration Statement shall include such new automatic shelf registration statement or on behalf ofsuch new shelf registration statement, used by, or referred to by as the Company and the Operating Partnership and will not use or refer to any proposed free writing prospectus that is reasonably objected to by the Underwriterscase may be.
(fc) The Company and If, at any time when a prospectus relating to the Operating Partnership will not take any action that would result in an Underwriter, the Company or the Operating Partnership being Securities is required to file with be (or, but for the Commission pursuant exemption in Rule 172 of the 1933 Act Regulations, would be required to Rule 433(dbe) delivered under the 1933 Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(g) The Company and the Operating Partnership will deliver to the Representatives as soon as possible as many signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) as the Representatives may reasonably request and will also deliver to the Representatives as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus) as the Representatives may reasonably request.
(h) If, during such period after the first date of the public offering of the Underwritten Securities as the Prospectus (or in lieu thereof the notice referred to in the Rule 173(a) under the 0000 Xxx) is required by law to be delivered in connection with sales by an Underwriter or dealerAct, any event shall occur occurs as a result of which it is necessarythe Registration Statement, General Disclosure Package or the Prospectus, as then supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading, any facts or events arise which, individually or in the reasonable opinion of counsel for aggregate, would represent a fundamental change in the Underwritersinformation set forth in the Registration Statement, the General Disclosure Package or the Prospectus, or if it shall be necessary to amend the Registration Statement, file a new registration statement or to supplement the Prospectus in order to make comply with the Prospectus not misleading in 1933 Act or the light of 1934 Act or the circumstances existing at the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaserrespective rules and regulations thereunder, the Company and the Operating Partnership promptly will (i) notify such Agent to suspend the solicitation of offers to purchase Securities (and, if so notified, such Agent shall forthwith amend or supplement suspend such solicitation and cease using the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so then amended or supplemented), (ii) prepare and file with the Commission, subject to the first sentence of paragraph (a) of this Section 4, an amendment or supplement or new registration statement which will correct such statement or omission or an amendment or supplement which will effect such compliance and (iii) will supply any such amended or supplemented Prospectus will not or new registration statement to such Agent in such quantities as such Agent may reasonably request. If such amendment or supplement, and any documents, certificates and opinions furnished to such Agent pursuant to paragraph (i) of this Section 4 in connection with the preparation or filing of such amendment or supplement are reasonably satisfactory in all respects to such Agent, such Agent will, upon the filing of such amendment or supplement with the Commission and upon the effectiveness of an amendment to the Registration Statement (or new registration statement) if such an amendment is required, resume such Agent’s obligation to solicit offers to purchase Securities hereunder. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information then contained in the Registration Statement or Prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing prevailing at the time it ( or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaserthat subsequent time, not misleading, and the Company and the Operating Partnership will (i) promptly notify the applicable Agent(s) and (ii) promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(d) With respect to any issue of Securities, the Company and the Operating Partnership represent and agree that, unless they obtain the prior written consent of the related Agent(s), they will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, that is required to be filed with the Commission or retained by the Company and the Operating Partnership under Rule 433; provided that the prior written consent of the Agent(s) hereto shall be deemed to have been given in respect to the Issuer Free Writing Prospectus(es) listed in the applicable Terms Agreement. Any such free writing prospectus consented to by such Agent(s) is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company and the Operating Partnership represent that they have treated and agree that they will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping.
(e) The Company will prepare a final term sheet relating to the final terms of the Securities, in the form attached to the form of Terms Agreement, and will file such final term sheet within the period required by Rule 433(d)(5)(ii). Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement. In addition to the foregoing, the Agent may, without consent of the Company or the Operating Partnership, use a free writing prospectus that contains only (a) (i) information describing the preliminary terms of the Securities or their offering, (ii) information that describes the final terms of the Securities or their offering and that is included in the final term sheet of the Company and the Operating Partnership contemplated in the first sentence of this subsection or (iii) information permitted by Rule 134 under the 1933 Act or (b) other information that is not “issuer information,” as defined in Rule 433.
(f) The Company will deliver to the Agents 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 by reference in the Prospectus) as the Agents reasonably request. The Company will furnish to the Underwriters a reasonable number of Agents as many copies of such amendment the Prospectus and any Issuer Free Writing Prospectus (in each case, as amended or supplementsupplemented) as the Agents reasonably request so long as the Agents are required to deliver a Prospectus in connection with sales or solicitations of offers to purchase the Securities.
(ig) As soon as practicable, but in any event not later than 16 months after any Settlement Date, the Company and the Operating Partnership will make generally available to the Company’s security holders and to the Agents earnings statements covering a period of at least 12 months beginning after the effective date of the Registration Statement and otherwise satisfying the provisions of and provide the benefits contemplated by Section 11(a) of the 1933 Act and Rule 158 under the 1933 Act.
(h) The Company and the Operating Partnership will endeavor, in cooperation with the UnderwritersAgents, to qualify the Underwritten Securities for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions of the United States as the Representatives Agents may reasonably designate. In each , and will maintain such qualifications in effect for as long as may be required for the distribution of the Securities; provided, however, that the Company and the Operating Partnership shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which the Underwritten Securities have been they are not so qualified, the . The Company and the Operating Partnership will file such statements and reports as may be required by the laws of such each jurisdiction to continue such qualification in effect for so long which the Securities have been qualified as may be required for above provided. The Company will promptly advise the distribution Agents of the Underwritten Securitiesreceipt by the Company or the Operating Partnership of any notification with respect to the suspension of the qualification of the Securities for sale in any such state or jurisdiction or the initiating or threatening of any proceeding for such purpose.
(j) With respect to each sale of Underwritten Securities, the Company and the Operating Partnership will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined in said Rule 158) of the Registration Statement.
(ki) The Company and the Operating Partnership, if applicable, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 ActAct in connection with sales of the Securities (or but for the exemption afforded by Rule 172 of the 1933 Act would be required to be delivered), will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 15(d) of the 1934 Act within the time periods required prescribed by the 1934 Act and the rules and regulations of the Commission thereunder (the “1934 Act Regulations”).
(lj) The Company will file with the New York Stock Exchange all documents and notices required If specified by the New York Stock Exchange applicable Agent or Agents in connection with a purchase of companies that have securities listed on such exchange andSecurities from the Company as principal, unless otherwise agreed upon with respect to Preferred Stock, Depository Shares and Debt Securities, will use its commercially reasonable efforts to maintain the listing of any Underwritten Securities listed on the New York Stock Exchange.
(m) With respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable.
(o) Unless otherwise provided in the applicable Terms Agreement, during a period of 90 days from between the date of the applicable Terms Agreement relating agreement to Underwritten Securitiespurchase such Securities and the Settlement Date with respect to such purchase, the Company and the Operating Partnership will not, without the prior written consent of the Representatives, directly such Agent or indirectly, sellAgents, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; (ii) if such Terms Agreement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of options, and the issuance of shares in respect of such options, pursuant to a stock option plan; (iii) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter of the offering of the Underwritten Securities and the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of enter into any of such agreement to sell, any debt securities until the expiration of a 90-day period from the date of the applicable Terms AgreementCompany (other than the Securities that are to be sold pursuant to such agreement, commercial paper in the ordinary course of business or assumptions of mortgages on acquired properties).
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable efforts to list the Common Stock on the New York Stock Exchange.
(rk) The Company will use commercially reasonable efforts to continue to meet the requirements elect to qualify as a “real estate investment trust” under the Code.
(s) If Code and will use its best efforts to continue to qualify as a “real estate investment trust” for so long as the Registration Statement is an automatic shelf registration statement and Company’s board of directors deems it in the third anniversary best interest of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, then the Company or the Operating Partnership, as applicable, will, prior and its shareholders to the third anniversary file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission;remain so qualified.
Appears in 2 contracts
Samples: Distribution Agreement (UDR, Inc.), Distribution Agreement (UDR, Inc.)
Covenants of the Company and the Operating Partnership. Each of the Company and the Operating Partnership covenants with the Representatives, and with each Underwriter participating in the offering of Underwritten Securities, as follows:
(a) In respect to each offering of Underwritten Securities, the Company or the Operating Partnership, as the case may be, will furnish to the Underwriters named in the applicable Terms Agreement as many copies of the Time of Sale Prospectus and the Prospectus (including any Prospectus Supplement) as the Representatives shall reasonably request.
(b) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, file with the Commission and furnish, at their own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 430B of the 1933 Act Regulations, then immediately following the execution of the Terms Agreement, the Company and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplement, or, if required by such Rule 430A or 430B, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and the Operating Partnership will pay the registration fees for each offering of securities within the time period required by Rule 456(b)(1)(i) under the 1933 Act prior to the Closing Time. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than the date of execution of the Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(d) The Company and the Operating Partnership will notify the Representatives immediately, and confirm such notice in writing, of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 Act, (iii) the receipt of any comments from the Commission regarding the Registration Statement or the documents incorporated therein by reference, (iv) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or any Time of Sale Prospectus or for additional information, (v) the receipt by the Company or the Operating Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act, and (vi) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; and the Company and the Operating Partnership will make every reasonable effort to prevent the issuance of any such stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(e) The Company and the Operating Partnership will deliver to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and the Operating Partnership and will not use or refer to any proposed free writing prospectus that is reasonably objected to by the Underwriters.
(f) The Company and the Operating Partnership will not take any action that would result in an Underwriter, the Company or the Operating Partnership being required to file with the Commission pursuant to Rule 433(d) under the 1933 Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(g) The Company and the Operating Partnership will deliver to the Representatives as soon as possible as many signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) as the Representatives may reasonably request and will also deliver to the Representatives as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus) as the Representatives may reasonably request.
(h) If, during such period after the first date of the public offering of the Underwritten Securities as the Prospectus (or in lieu thereof the notice referred to in the Rule 173(a) under the 0000 Xxx) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriters, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it ( or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, not misleading, and the Company and the Operating Partnership will furnish to the Underwriters a reasonable number of copies of such amendment or supplement.
(i) The Company and the Operating Partnership will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions as the Representatives may reasonably designate. In each jurisdiction in which the Underwritten Securities have been so qualified, the Company and the Operating Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities.
(j) With respect to each sale of Underwritten Securities, the Company and the Operating Partnership will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-month twelvemonth period beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined in said Rule 158) of the Registration Statement.
(k) The Company and the Operating Partnership, if applicable, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(l) The Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect to Preferred Stock, Depository Shares and Debt Securities, will use its commercially reasonable efforts to maintain the listing of any Underwritten Securities listed on the New York Stock Exchange.
(m) With respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable.
(o) Unless otherwise provided in the applicable Terms Agreement, during a period of 90 days from the date of the applicable Terms Agreement relating to Underwritten Securities, the Company and the Operating Partnership will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; and (ii) if such Terms Agreement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of optionsshares of restricted stock, restricted stock units, options or other similar securities pursuant to employee or director equity plans, and the issuance of shares in respect of the conversion or exercise of any such options, pursuant to a stock option plansecurities; (iii) the issuance of shares of Common Stock pursuant to the Duke Realty 401(k) Plan; (iv) the issuance of shares pursuant to a dividend reinvestment plan, including the Company’s Direct Stock Purchase and Dividend Reinvestment Plan; (v) the issuance of shares pursuant to an employee stock purchase plan; and (ivvi) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter of the offering of the Underwritten Securities and the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date of the applicable Terms Agreement.
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable efforts to list the Common Stock on the New York Stock Exchange.
(r) The Company will use commercially reasonable efforts to continue to meet the requirements to qualify as a “real estate investment trust” under the Code.
(s) If the Registration Statement is an automatic shelf registration statement and the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, then the Company or the Operating Partnership, as applicable, will, prior to the third anniversary file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission;
Appears in 2 contracts
Samples: Terms Agreement (Duke Realty Limited Partnership/), Terms Agreement (Duke Realty Limited Partnership/)
Covenants of the Company and the Operating Partnership. Each of the Company and the Operating Partnership covenants with the Representatives, and with each Underwriter participating in the offering of Underwritten Securities, as follows:
(a) In respect to each offering of Underwritten Securities, the Company or the Operating Partnership, as the case may be, will furnish to the Underwriters named in the applicable Terms Agreement as many copies of the Time of Sale Prospectus and the Prospectus (including any Prospectus Supplement) as the Representatives shall reasonably request.
(b) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, file with the Commission and furnish, at their own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 430B of the 1933 Act Regulations, then immediately following the execution of the Terms Agreement, the Company and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplement, or, if required by such Rule 430A or 430B, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and the Operating Partnership will pay hereby jointly and severally covenant and agree with the registration fees for each offering of securities within Dealer Manager that:
2.1 The Company will: (a) use commercially reasonable efforts to cause the time period required by Rule 456(b)(1)(i) under the 1933 Act prior to the Closing Time. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than and any subsequent amendments thereto to become effective as promptly as possible; (b) promptly advise the date of execution of the Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(d) The Company and the Operating Partnership will notify the Representatives immediately, and confirm such notice in writing, of Dealer Manager (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 Act, (iii) the receipt of any comments from of, or requests for additional or supplemental information from, the Commission regarding the Registration Statement or the documents incorporated therein by referenceCommission, (ivii) of the time and date of any request by the Commission for filing of any post-effective amendment to the Registration Statement or any amendment or supplement to the Prospectus or any Time of Sale Prospectus or for additional informationProspectus, and (viii) the receipt by the Company or the Operating Partnership of any notice of objection of the Commission to the use of the Registration Statement or time and date that any post-effective amendment thereto pursuant to Rule 401(g)(2the Registration Statement becomes effective; (c) under timely file every amendment or supplement to the 1933 Act, and (vi) Registration Statement or the issuance Prospectus that may be required by the Commission of or under the Securities Act; and (d) if at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement or Statement, it will promptly notify the initiation of any proceedings for that purpose; and Dealer Manager and, to the extent the Company and determines such action is in the Operating Partnership will make every best interest of the Company, use its commercially reasonable effort to prevent the issuance of any such stop order and, if any stop order is issued, efforts to obtain the lifting thereof of such order at the earliest possible momenttime.
(e) The 2.2 In addition to and apart from the Prospectus, the Company and intends to use printed sales literature or other materials in connection with the Operating Partnership will deliver to the Representatives a copy of each proposed free writing prospectus to be Offering prepared by or on behalf of, used by, or referred to by the Company and or Xxxxx National Advisor I, LLC, a Delaware limited liability company that serves as the Operating Partnership and will not use Company’s advisor pursuant to the terms of an advisory agreement (the “Advisor”), which materials are generally described in the Prospectus. Such printed sales literature or refer to any proposed free writing prospectus that is reasonably objected to other materials prepared by the Underwriters.
(f) The Company and the Operating Partnership will not take any action that would result in an Underwriter, the Company or the Operating Partnership being required Advisor, provided that the use of said sales literature and other materials has been approved for use by the Company in writing and all appropriate regulatory agencies, are referred to file hereinafter as the “Authorized Sales Materials.” In the event that the Company uses printed materials in connection with the Commission pursuant to Rule 433(d) under the 1933 Act a free writing prospectus Offering prepared by the Company or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunderAdvisor intended for “broker-dealer use only,” Dealer Manager shall use such “broker-dealer use only” materials in accordance with Section 4.3 below.
(g) 2.3 The Company and the Operating Partnership will deliver will, at no expense to the Representatives as soon as possible as many signed Dealer Manager, furnish the Dealer Manager with such number of printed copies of the Registration Statement as originally filed Statement, including all amendments and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) thereto, as the Representatives Dealer Manager may reasonably request. The Company will similarly furnish to the Dealer Manager and others designated by the Dealer Manager as many copies as the Dealer Manager may reasonably request in connection with the Offering of the Offered Shares of: (a) the Prospectus in preliminary and final form and every form of supplemental or amended prospectus; and (b) the Authorized Sales Materials.
2.4 The Company will also deliver use its commercially reasonable efforts to qualify the Offered Shares for offering and sale under, or to establish the exemption of the offering and sale of the Offered Shares from qualification or registration under, the applicable state securities or “blue sky” laws of each jurisdiction designated in Exhibit B hereto (the “Qualified Jurisdictions”) and to maintain such qualifications or exemptions in effect throughout the Offering. In connection therewith, the Company will prepare and file all such post-sales filings or reports as may be required by the securities regulatory authorities in the Qualified Jurisdictions in which the Offered Shares have been sold, provided that the Dealer Manager shall have provided the Company with any information required for such filings or reports that is in the Dealer Manager’s possession. The Company will notify the Dealer Manager promptly following each date of: (a) the effectiveness of qualification or exemption of Offered Shares in any additional jurisdiction in which the offering and sale of Offered Shares has been authorized by appropriate state regulatory authorities; and (b) a change in the status of the qualification or exemption of the Offered Shares in any jurisdiction in any respect. The Company will file and obtain clearance of the Authorized Sales Material to the Representatives as many conformed copies extent required by applicable state securities laws. The Company will furnish to the Dealer Manager a copy of such papers filed by the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus) as the Representatives may reasonably requestCompany in connection with any such qualification.
(h) If, during such period after the first date of the public offering of the Underwritten Securities as the 2.5 If at any time when a Prospectus (or in lieu thereof the notice referred to in the Rule 173(a) under the 0000 Xxx) is required by law to be delivered in connection with sales by an Underwriter or dealer, under the Securities Act any event shall occur occurs as a result of which it is necessarywhich, in the reasonable opinion of counsel for the Underwriters, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so amended or supplementedCompany, the Prospectus will not would include an untrue statement of a material fact or omit omits to state a any material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it ( or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaserwhich they are made, not misleading, the Company will promptly notify the Dealer Manager thereof (unless the information shall have been received from the Dealer Manager) and the Company Dealer Manager and the Operating Partnership will furnish to Participating Dealers shall suspend the Underwriters a reasonable number of copies of such amendment or supplement.
(i) The Company and the Operating Partnership will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities for offering and sale under of the applicable securities laws and real estate syndication laws of Offered Shares in accordance with Section 4.3 hereof until such states and other jurisdictions time as the Representatives may reasonably designate. In each jurisdiction Company, in which its sole discretion (a) instructs the Underwritten Securities have been so qualified, Dealer Manager to resume the Company offering and the Operating Partnership 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 sale of the Underwritten SecuritiesOffered Shares and (b) has prepared any required supplemental or amended prospectus as shall be necessary to correct such statement or omission and to comply with the requirements of Section 10 of the Securities Act.
(j) With respect to each sale of Underwritten Securities, the Company and the Operating Partnership will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined in said Rule 158) of the Registration Statement.
(k) The Company and the Operating Partnership, if applicable, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(l) 2.6 The Company will file with apply the New York Stock Exchange all documents and notices required by proceeds from the New York Stock Exchange sale of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect to Preferred Stock, Depository the Offered Shares and Debt Securities, will use its commercially reasonable efforts to maintain as stated in the listing of any Underwritten Securities listed on the New York Stock ExchangeProspectus.
(m) With respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable.
(o) Unless otherwise provided in the applicable Terms Agreement, during a period of 90 days from the date of the applicable Terms Agreement relating to Underwritten Securities, the Company and the Operating Partnership will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; (ii) if such Terms Agreement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of options, and the issuance of shares in respect of such options, pursuant to a stock option plan; (iii) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter of the offering of the Underwritten Securities and the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date of the applicable Terms Agreement.
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable efforts to list the Common Stock on the New York Stock Exchange.
(r) 2.7 The Company will use commercially reasonable efforts to continue to meet engage and maintain, at its expense, a registrar and transfer agent for the requirements to qualify as a “real estate investment trust” under the CodeOffered Shares.
(s) If the Registration Statement is an automatic shelf registration statement and the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, then the Company or the Operating Partnership, as applicable, will, prior to the third anniversary file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission;
Appears in 2 contracts
Samples: Dealer Manager Agreement (Moody National REIT I, Inc.), Dealer Manager Agreement (Moody National REIT I, Inc.)
Covenants of the Company and the Operating Partnership. Each of the Company and the Operating Partnership covenants with the Representatives, and with each Underwriter participating in the offering of Underwritten Securities, as follows:
(a) In respect to each offering of Underwritten Securities, the Company or the Operating Partnership, as the case may be, will furnish to the Underwriters named in the applicable Terms Agreement as many copies of the Time of Sale Prospectus and the Prospectus (including any Prospectus Supplement) as the Representatives shall reasonably request.
(b) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, file with the Commission and furnish, at their own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 430B of the 1933 Act Regulations, then immediately following the execution of the Terms Agreement, the Company and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplement, or, if required by such Rule 430A or 430B, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and the Operating Partnership will pay hereby jointly and severally covenant and agree with the registration fees for each offering of securities within the time period required by Rule 456(b)(1)(iDealer Manager that:
2.1 The Company will: (a) under the 1933 Act prior use commercially reasonable efforts to cause any subsequent amendments to the Closing Time. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than to become effective as promptly as possible; (b) promptly advise the date of execution of the Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(d) The Company and the Operating Partnership will notify the Representatives immediately, and confirm such notice in writing, of Dealer Manager (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 Act, (iii) the receipt of any comments from of, or requests for additional or supplemental information from, the Commission regarding the Registration Statement or the documents incorporated therein by referenceCommission, (ivii) of the time and date of any request by the Commission for filing of any post-effective amendment to the Registration Statement or any amendment or supplement to the Prospectus or any Time of Sale Prospectus or for additional informationProspectus, and (viii) the receipt by the Company or the Operating Partnership of any notice of objection of the Commission to the use of the Registration Statement or time and date that any post-effective amendment thereto pursuant to Rule 401(g)(2the Registration Statement becomes effective; (c) under timely file every amendment or supplement to the 1933 Act, and (vi) Registration Statement or the issuance Prospectus that may be required by the Commission of or under the Securities Act; and (d) if at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement or Statement, it will promptly notify the initiation of any proceedings for that purpose; and Dealer Manager and, to the extent the Company and determines such action is in the Operating Partnership will make every best interest of the Company, use its commercially reasonable effort to prevent the issuance of any such stop order and, if any stop order is issued, efforts to obtain the lifting thereof of such order at the earliest possible momenttime.
(e) The 2.2 In addition to and apart from the Prospectus, the Company and the Operating Partnership will deliver intends to the Representatives a copy of each proposed free writing prospectus to be use printed sales literature or other materials prepared by the Advisor in connection with the Offering, which materials are generally described in the Prospectus. Such printed sales literature or on behalf ofother materials prepared by the Advisor, used by, or referred to provided that the use of said sales literature and other materials has been approved for use by the Company in writing and all appropriate regulatory agencies, are referred to hereinafter as the Operating Partnership and will not use or refer to any proposed free writing prospectus that is reasonably objected to by the Underwriters“Authorized Sales Materials.”
(f) 2.3 The Company and the Operating Partnership will not take any action that would result in an Underwriterwill, the Company or the Operating Partnership being required to file with the Commission pursuant to Rule 433(d) under the 1933 Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(g) The Company and the Operating Partnership will deliver at no expense to the Representatives as soon as possible as many signed Dealer Manager, furnish the Dealer Manager with such number of printed copies of the Registration Statement as originally filed Statement, including all amendments and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) thereto, as the Representatives Dealer Manager may reasonably request. The Company will similarly furnish to the Dealer Manager and others designated by the Dealer Manager as many copies as the Dealer Manager may reasonably request in connection with the Offering of the Offered Shares of: (a) the Prospectus in preliminary and final form and every form of supplemental or amended prospectus; and (b) the Authorized Sales Materials.
2.4 The Company will also deliver use its commercially reasonable efforts to qualify the Offered Shares for offering and sale under, or to establish the exemption of the offering and sale of the Offered Shares from qualification or registration under, the applicable state securities or “blue sky” laws of each jurisdiction designated in Exhibit B hereto (the “Qualified Jurisdictions”) and to maintain such qualifications or exemptions in effect throughout the Offering. In connection therewith, the Company will prepare and file all such post-sales filings or reports as may be required by the securities regulatory authorities in the Qualified Jurisdictions in which the Offered Shares have been sold, provided that the Dealer Manager shall have provided the Company with any information required for such filings or reports that is in the Dealer Manager’s possession. The Company will notify the Dealer Manager promptly following each date of: (a) the effectiveness of qualification or exemption of Offered Shares in any additional jurisdiction in which the offering and sale of Offered Shares has been authorized by appropriate state regulatory authorities; and (b) a change in the status of the qualification or exemption of the Offered Shares in any jurisdiction in any respect. The Company will file and obtain clearance of the Authorized Sales Material to the Representatives as many conformed copies extent required by applicable state securities laws. The Company will furnish to the Dealer Manager a copy of such papers filed by the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus) as the Representatives may reasonably requestCompany in connection with any such qualification.
(h) If, during such period after the first date of the public offering of the Underwritten Securities as the 2.5 If at any time when a Prospectus (or in lieu thereof the notice referred to in the Rule 173(a) under the 0000 Xxx) is required by law to be delivered in connection with sales by an Underwriter or dealer, under the Securities Act any event shall occur occurs as a result of which it is necessarywhich, in the reasonable opinion of counsel for the Underwriters, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so amended or supplementedCompany, the Prospectus will not would include an untrue statement of a material fact or omit omits to state a any material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it ( or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaserwhich they are made, not misleading, the Company will promptly notify the Dealer Manager thereof (unless the information shall have been received from the Dealer Manager) and the Company Dealer Manager and the Operating Partnership will furnish to Participating Dealers shall suspend the Underwriters a reasonable number of copies of such amendment or supplement.
(i) The Company and the Operating Partnership will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities for offering and sale under of the applicable securities laws Offered Shares in accordance with Section 4.4 hereof until such time as the Company, in its sole discretion (a) instructs the Dealer Manager to resume the offering and sale of the Offered Shares and (b) has prepared any required supplemental or amended prospectus as shall be necessary to correct such statement or omission and to comply with the requirements of Section 10 of the Securities Act.
2.6 The Company intends to satisfy the requirements of the Code for qualification of the Company as a real estate syndication laws of such states and other jurisdictions as the Representatives may reasonably designateinvestment trust. In each jurisdiction in which the Underwritten Securities have been so qualified, the Company and the Operating Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities.
(j) With respect to each sale of Underwritten Securities, the Company and the Operating Partnership will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined in said Rule 158) of the Registration Statement.
(k) The Company and the Operating Partnership, if applicable, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(l) The Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect elect to Preferred Stock, Depository Shares and Debt Securities, will use its commercially reasonable efforts to maintain the listing of any Underwritten Securities listed on the New York Stock Exchange.
(m) With respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture be treated as a real estate investment trust under the 1939 Act Code at such time as it so qualifies and will endeavor to have a Statement of Eligibility submitted on behalf direct the investment of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable.
(o) Unless otherwise provided in the applicable Terms Agreement, during a period of 90 days from the date of the applicable Terms Agreement relating to Underwritten Securities, the Company and the Operating Partnership will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; (ii) if such Terms Agreement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of options, and the issuance of shares in respect of such options, pursuant to a stock option plan; (iii) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter proceeds of the offering of the Underwritten Securities Offered Shares in such a manner, and will exercise reasonable diligence to operate the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date business of the applicable Terms AgreementCompany, so as to comply with such requirements.
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable efforts to list the Common Stock on the New York Stock Exchange.
(r) 2.7 The Company will use commercially reasonable efforts to continue to meet apply the requirements to qualify proceeds from the sale of the Offered Shares as a “real estate investment trust” under stated in the CodeProspectus.
2.8 The Company will engage and maintain, at its expense, a registrar and transfer agent for the Offered Shares.
2.9 The parties hereto acknowledge and agree that the Advisor may, from time to time, employ and compensate persons to assist in the marketing of the Offered Shares (sthe “Related Persons”); provided, however, that:(a) If the Registration Statement is an automatic shelf registration statement employment of such Related Persons shall be approved in advance by the Dealer Manager, in its sole discretion; (b) the employment of each such Related Persons by the Advisor shall be conditioned upon the existence of a written associated person agreement between such Related Person and the third anniversary Dealer Manager; and (c) the Dealer Manager shall periodically reimburse the Advisor for the amount of the initial effective date of the Registration Statement occurs before all of the Securities have been sold compensation and benefits paid by the Underwriters, then the Company or the Operating Partnership, as applicable, will, prior Advisor to the third anniversary file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission;such Related Persons.
Appears in 1 contract
Samples: Dealer Manager Agreement (Paladin Realty Income Properties Inc)
Covenants of the Company and the Operating Partnership. Each of the Company and the Operating Partnership covenants with the Representatives, and with each Underwriter participating in the offering of Underwritten Securities, as follows:
(a) In respect to each offering of Underwritten Securities, the Company or the Operating Partnership, as the case may be, will prepare a Prospectus Supplement setting forth the number of Underwritten Securities covered thereby and their terms not otherwise specified in the Prospectus pursuant to which the Underwritten Securities are being issued, the names of the Underwriters participating in the offering and the number of Underwritten Securities which each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, the price at which the Underwritten Securities are to be purchased by the Underwriters from the Company or the Operating Partnership, as the case may be, the initial public offering price, if any, the selling concession and reallowance, if any, and such other information as the Representatives and the Company or the Operating Partnership, as the case may be, deem appropriate in connection with the offering of the Underwritten Securities; and the Company or the Operating Partnership, as the case may be, will promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations and will furnish to the Underwriters named in the applicable Terms Agreement therein as many copies of the Time of Sale Prospectus and the Prospectus (including any such Prospectus Supplement) as the Representatives shall reasonably request.
(b) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, file with the Commission and furnish, at their own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 430B of the 1933 Act Regulations, then immediately following the execution of the Terms Agreement, the Company and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, 430A and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplementcopy of an amended Prospectus, or, if required by such Rule 430A or 430B430A, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and the Operating Partnership will pay the registration fees for each offering of securities within the time period required by Rule 456(b)(1)(i) under the 1933 Act prior to the Closing Time. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than the date of execution of the Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(dc) The Company and the Operating Partnership will notify the Representatives immediately, and confirm such notice in writing, of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 Act, (iii) the receipt of any comments from the Commission regarding the Registration Statement or the documents incorporated therein by referenceCommission, (iv) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or any Time of Sale Prospectus or for additional information, and (v) the receipt by the Company or the Operating Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act, and (vi) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; and the Company and the Operating Partnership will make every reasonable effort to prevent the issuance of any such stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(ed) The At any time when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, the Company and the Operating Partnership will deliver give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement or any amendment or supplement to the Prospectus, whether pursuant to the 1933 Act, 1934 Act or otherwise, will furnish the Representatives with copies of any such amendment or supplement a copy reasonable amount of each time prior to such proposed free writing prospectus to be prepared filing and, unless required by or on behalf oflaw, used by, or referred to by the Company and the Operating Partnership and will not file or use any such amendment or refer supplement or other documents in a form to any proposed free writing prospectus that is which the Representatives or counsel for the Underwriters shall reasonably objected to by the Underwritersobject.
(f) The Company and the Operating Partnership will not take any action that would result in an Underwriter, the Company or the Operating Partnership being required to file with the Commission pursuant to Rule 433(d) under the 1933 Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(ge) The Company and the Operating Partnership will deliver to the Representatives as soon as possible as many signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) as the Representatives may reasonably request and will also deliver to the Representatives as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus) as the Representatives may reasonably request.
(hf) IfThe Company and the Operating Partnership will furnish to each Underwriter, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such period after the first date number of the public offering copies of the Underwritten Securities as the Prospectus (as amended or in lieu thereof supplemented) as such Underwriter may reasonably request for the notice referred to in purposes contemplated by the Rule 173(a1933 Act or the 1934 Act or the respective applicable rules and regulations of the Commission thereunder.
(g) under the 0000 Xxx) is required by law to be delivered in connection with sales by an Underwriter or dealer, If any event shall occur as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriters, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it ( or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, not misleading, and the Company and the Operating Partnership will furnish to the Underwriters a reasonable number of copies of such amendment or supplement.
(ih) The Company and the Operating Partnership will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions as the Representatives may reasonably designate. In each jurisdiction in which the Underwritten Securities have been so qualified, the Company and the Operating Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities.
(ji) With respect to each sale of Underwritten Securities, the Company and the Operating Partnership will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of the Company’s 's fiscal quarter next following the “"effective date” " (as defined in said Rule 158) of the Registration Statement.
(j) Each of the Company and the Operating Partnership will use the net proceeds received by it from the sale of the Underwritten Securities in the manner specified in the Prospectus under "Use of Proceeds."
(k) The Company and the Operating Partnership, if applicable, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(l) The Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect to Preferred Stock, Depository Shares and Debt Securities, will use its commercially reasonable best efforts to maintain the listing of any Underwritten Securities listed on the New York Stock Exchange.
(m) With In respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s 's Ratings Services (“"S&P”"), Xxxxx’x Xxxxx'x Investors Service, Inc. (“Xxxxx’x”"Xxxxx'x") or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable.
(o) Unless otherwise provided in the applicable Terms Agreement, during During a period of 90 days from the date of the applicable Terms Agreement any Prospectus Supplement relating to Underwritten Securities, the Company and the Operating Partnership will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; series or ranking on a parity with any Underwritten Securities (other than the Underwritten Securities covered by such Prospectus Supplement or any security convertible into or exchangeable for shares of such Underwritten Securities and (ii) if such Terms Agreement Prospectus Supplement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of options, and the issuance of shares in respect of such options, pursuant to a stock option plan; (iii) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter of the offering of the Underwritten Securities and the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date of the applicable Terms Agreementany Prospectus Supplement.
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable its best efforts to list the Common Stock on the New York Stock Exchange.
(r) The Company will use commercially reasonable its best efforts to continue to meet the requirements to qualify as a “"real estate investment trust” " under the Code.
(s) If During the Registration Statement is an automatic shelf registration statement period from the Closing Time until five years after the Closing Time, the Company and the third anniversary Operating Partnership will deliver to the Representatives, (i) promptly upon their becoming available, copies of all current, regular and periodic reports of the initial effective date Company mailed to its stockholders or filed with any securities exchange or with the Commission or any governmental authority succeeding to any of the Registration Statement occurs before all of the Securities have been sold by the UnderwritersCommission's functions, then and (ii) such other information concerning the Company or and the Operating Partnership, Partnership as applicable, will, prior to the third anniversary file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission;Representatives may reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Duke Realty Limited Partnership/)
Covenants of the Company and the Operating Partnership. Each of the Company and the Operating Partnership covenants with the Representatives, and with each Underwriter participating in the offering of Underwritten Securities, you as follows:
(a) In respect to each offering Immediately following the execution of Underwritten Securitiesthis Agreement, the Company or will prepare a Prospectus Supplement setting forth the Operating Partnership, as the case may be, will furnish to the Underwriters named number of Underwritten Securities covered thereby and their terms not otherwise specified in the applicable Terms Agreement Prospectus pursuant to which the Underwritten Securities are being issued, your name as many an underwriter in the offering, the price at which the Underwritten Securities are to be purchased by you from the Company, the initial public offering price, if any, the selling concession and reallowance, if any, any delayed delivery arrangements, and such other information as you and the Company deem appropriate in connection with the offering of the Underwritten Securities; and the Company will promptly transmit copies of the Time of Sale Prospectus and the Prospectus (including any Prospectus Supplement) as the Representatives shall reasonably request.
(b) If the Time of Sale Prospectus is being used Supplement to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, file with the Commission and furnish, at their own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed with the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations, any information Regulations within the time period required by such Rule and will furnish to you as many copies of the Prospectus and such Prospectus Supplement as you shall have been omitted therefrom in reliance upon reasonably request. If the Company elects to rely on Rule 430A or Rule 430B of 434 under the 1933 Act Regulations, then immediately following the execution Company will prepare an abbreviated term sheet that complies with the requirements of Rule 434 under the 1933 Act Regulations and will provide you with copies of the Terms Agreementform of Rule 434 Prospectus, the Company and the Operating Partnership will preparein such number as you may reasonably request, and file or transmit for filing with the Commission the form of Prospectus complying with Rule 434(c)(2) of the 1933 Act Regulations in accordance with such Rule 430A, 430B, and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplement, or, if required Regulations by such Rule 430A or 430B, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and close of business in New York on the Operating Partnership will pay the registration fees for each offering of securities within the time period required by Rule 456(b)(1)(i) under the 1933 Act prior to the Closing Time. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than business day immediately succeeding the date of execution of the Terms this Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(db) The Company and the Operating Partnership will notify the Representatives you immediately, and confirm such notice in writing, of (i) the effectiveness of any amendment to the Registration StatementStatement relating to or affecting the offering of the Underwritten Securities, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus or any document to be filed pursuant to the 1933 Act1934 Act relating to or affecting the offering of the Underwritten Securities, (iii) the receipt of any comments from the Commission regarding relating to or affecting the Registration Statement or offering of the documents incorporated therein by referenceUnderwritten Securities, (iv) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or any Time of Sale Prospectus or for additional information, (v) information relating to or affecting the receipt by the Company or the Operating Partnership of any notice of objection offering of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 ActUnderwritten Securities, and (viv) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement relating to or affecting the offering of the Underwritten Securities or the initiation of any proceedings for that purpose; and the Company and the Operating Partnership will make every reasonable effort to prevent the issuance of any such stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(ec) The Company and At any time when the Operating Partnership will deliver to the Representatives a copy of each proposed free writing prospectus Prospectus is required to be prepared by or on behalf of, used by, or referred to by the Company and the Operating Partnership and will not use or refer to any proposed free writing prospectus that is reasonably objected to by the Underwriters.
(f) The Company and the Operating Partnership will not take any action that would result in an Underwriter, the Company or the Operating Partnership being required to file with the Commission pursuant to Rule 433(d) delivered under the 1933 Act a free writing prospectus prepared by or on behalf the 1934 Act in connection with sales of the Underwriter that Underwritten Securities, the Underwriter otherwise would Company will give you notice of its intention to file or prepare any amendment to the Registration Statement or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use by you in connection with the offering of Underwritten Securities which differs from the prospectus on file at the Commission at the time the Registration Statement became effective, whether or not have been such revised prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act Regulations), whether pursuant to the 1933 Act, 1934 Act or otherwise, and will furnish you with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or preparation, as the case may be, and will not file thereunderor prepare any such amendment or supplement or other documents in a form to which you or your counsel shall reasonably object.
(gd) The Company and the Operating Partnership will deliver to the Representatives you, as soon as possible available, 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 by reference therein) as the Representatives may reasonably request and will also deliver to the Representatives as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus) as the Representatives you may reasonably request.
(he) IfThe Company will furnish to you, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the Exchange Act, such period after the first date number of the public offering copies of the Underwritten Securities as the Prospectus (as amended or in lieu thereof supplemented) as you may reasonably request for the notice referred to in purposes contemplated by the Rule 173(a1933 Act or the 1934 Act or the respective applicable rules and regulations of the Commission thereunder.
(f) under the 0000 Xxx) is required by law to be delivered in connection with sales by an Underwriter or dealer, If any event shall occur as a result of which it is necessary, in the reasonable opinion of your counsel or counsel for the UnderwritersCompany, to amend or supplement the Prospectus in order to make the Prospectus not misleading contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, not misleading, or if it shall be necessary, in the Company and the Operating Partnership will forthwith opinion of either such counsel, at any such time to amend or supplement the Registration Statement or the Prospectus in order to comply with the 1933 Act or the 1934 Act, the Company will forthwith prepare an amendment of or supplement to the Registration Statement or the Prospectus (in form and substance reasonably satisfactory to counsel for your counsel), whether by filing documents pursuant to the Underwriters) so that, as so amended or supplemented1933 Act, the 1934 Act or otherwise, which will amend or supplement the Prospectus so that it will not include contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it ( or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, not misleading, or to make the Registration Statement and Prospectus comply with such requirements, and the Company and the Operating Partnership will furnish to the Underwriters you a reasonable number of copies of such amendment or supplement.
(ig) The Company and the Operating Partnership will endeavor, in cooperation with the Underwritersyou, to qualify the Underwritten Securities and the Common Shares issuable upon conversion thereof 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 you may reasonably designate. In each jurisdiction in which the Underwritten Securities and such Common Shares have been so qualified, the Company and the Operating Partnership 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 a period of not less than one year from the distribution effective date of the Underwritten SecuritiesRegistration Statement.
(jh) With respect to each the sale of Underwritten SecuritiesSecurities pursuant to this Agreement, the Company and the Operating Partnership will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve12-month period beginning not later than the first day of the Company’s 's fiscal quarter next following the “"effective date” date of the registration statement" (as defined in said such Rule 158) of the Registration Statement).
(ki) The Company and the Operating Partnership, if applicableCompany, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 ActAct in connection with sales of the Underwritten Securities, will file all documents required to be filed with the Commission pursuant to Sections Section 13, 14 or 15 of the 1934 Act within the time periods required prescribed by the 1934 Act and the 1934 Act Regulations.
(lj) If applicable, the Company will use the net proceeds received by it from the sale of the Underwritten Securities in the manner specified in the Prospectus under the caption "Use of Proceeds."
(k) The Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect to Preferred Stock, Depository Shares and Debt Securities, will use its commercially reasonable best efforts to maintain effect the listing of any the Underwritten Securities listed and the Common Shares issuable upon conversion thereof on the New York Stock Exchange.
(ml) With respect to each offering of Debt Securities, During the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable.
(o) Unless otherwise provided in the applicable Terms Agreement, during a period of 90 days from the date of the applicable Terms Agreement relating to Underwritten Securitieshereof until 90 days after Closing time, the Company and the Operating Partnership will not, without the your prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; (ii) if such Terms Agreement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of options, and the issuance of shares in respect of such options, pursuant to a stock option plan; (iii) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter of the offering of the Underwritten Securities and the Company and the Operating Partnershipconsent, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of of, any of such securities until Common Shares, Preferred Shares or Units or any other security convertible into or exchangeable into or exercisable for the expiration of a 90-day period from Common Shares, otherwise than in accordance with this Agreement or as contemplated in the date Prospectus except for (i) options granted under the incentive plans of the applicable Terms AgreementCompany, (ii) Common Shares issued in exchange for Units and (iii) Common Shares or Units issued in connection with the acquisition of real property or interests therein.
(pm) If The Company will use its best efforts to meet the Preferred Stock is convertible into Common Stockrequirements to continue to qualify as a "real estate investment trust" under the Code.
(n) The Company and the Operating Partnership will cause, or have caused, the officers and trust managers of the Company to enter into lock-up agreements in form and substance reasonably satisfactory to you and each of the Company and the Operating Partnership acknowledges that you are or will be intended third party beneficiaries of such agreements.
(o) The Company will reserve and keep available at all times, free of preemptive rights and or other similar rights, a sufficient number of shares of Common Stock Shares for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock shares upon conversion of such Preferred Shares.
(p) Except for the Preferred Stockauthorization of actions permitted to be taken by you as contemplated herein or in the Prospectus, neither the Company nor the Operating Partnership will (i) take, directly or indirectly, any action designed to cause or to result in, or that might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Underwritten Securities, (ii) sell, bid for or purchase the Underwritten Securities or pay any person any compensation for soliciting purchases of the Underwritten Securities or (iii) pay or agree to pay to any person any compensation for soliciting another to purchase any other securities of the Company.
(q) If During the Preferred Stock is convertible into Common Stockperiod from Closing Time until five years after Closing Time, the Company will use commercially reasonable efforts deliver to list you, (i) promptly upon their becoming available, copies of all current, regular and periodic reports of the Common Stock on Company mailed to its stockholders or filed with any securities exchange or with the New York Stock ExchangeCommission or any governmental authority succeeding to any of the Commission's functions, and (ii) such other information concerning the Company, the Operating Partnership, any Subsidiary or any Residential Development Corporation as you may reasonably request.
(r) The Prior to Closing Time and if not described in the Prospectus, the Company and the Operating Partnership will use commercially reasonable efforts to continue to meet notify you in writing immediately if any event occurs that renders any of the requirements to qualify as a “real estate investment trust” under representations and warranties of the CodeCompany and the Operating Partnership contained herein inaccurate or incomplete in any respect.
(s) If at any time during the Registration Statement is an automatic shelf registration statement and the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, then the Company or the Operating Partnership, as applicable, will, prior to the third anniversary file a new shelf registration statement and take 25-day period after any other action necessary to permit the public offering of the Securities to continue without interruption; references herein amendment to the Registration Statement becomes effective or during the period prior to the final Date of Delivery, any rumor, publication or event relating to or affecting the Company shall include occur as a result of which in your opinion the new registration statement declared effective by market price of the Commission;Underwritten Securities has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates supplements to or amendments of the Prospectuses), the Company will, after written notice from you advising the Company to that effect, promptly prepare, consult with you concerning
Appears in 1 contract
Samples: Purchase Agreement (Crescent Real Estate Equities Co)
Covenants of the Company and the Operating Partnership. Each of the The Company and the Operating Partnership covenants with the RepresentativesPartnership, jointly and severally, covenant with each Underwriter participating in the offering of Underwritten Securities, as follows:
(a) In respect to each offering of Underwritten Securities, the Company or the Operating Partnership, as the case may be, will To furnish to the Underwriters named Representatives upon request, without charge, one signed copy of the Registration Statement (including exhibits thereto) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and to furnish to the Representatives, without charge, prior to 10:00 a.m. Central Time on the business day next succeeding the date of this Agreement and during the period set forth in the applicable Terms Agreement Section 6(f) or Section 6(g) hereof, as many copies of the Time of Sale Prospectus, the Prospectus and any supplements and amendments thereto or to the Prospectus (including any Prospectus Supplement) Registration Statement as the Representatives shall may request. The copies of the Registration Statement, Time of Sale Prospectus, the Prospectus and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EXXXX, except to the extent permitted by Regulation S-T.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to the Representatives a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Representatives reasonably requestobject, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule 424(b).
(bc) To furnish to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which the Representatives reasonably object.
(d) Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriters that the Underwriters otherwise would not have been required to file thereunder.
(e) To advise the Representatives promptly in writing (i) when the Registration Statement has become effective; (ii) when any amendment to the Registration Statement has been filed or becomes effective; (iii) when any supplement to the Prospectus or any Permitted Free Writing Prospectus or any amendment to the Prospectus has been filed; (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information; (v) of the issuance by the Commission of any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus or the Prospectus or the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act; or (vi) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Company will use its best efforts to prevent the issuance of any such order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification of the Shares and, if any such order is issued, will use its best efforts to obtain as soon as possible the withdrawal thereof.
(f) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstancescircumstances in which they were made, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the reasonable opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will promptly to prepare, file with the Commission and furnish, at their its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading, misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 430B of the 1933 Act Regulations, then immediately following the execution of the Terms Agreement, the Company and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplement, or, if required by such Rule 430A or 430B, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and the Operating Partnership will pay the registration fees for each offering of securities within the time period required by Rule 456(b)(1)(i) under the 1933 Act prior to the Closing Time. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than the date of execution of the Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(d) The Company and the Operating Partnership will notify the Representatives immediately, and confirm such notice in writing, of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 Act, (iii) the receipt of any comments from the Commission regarding the Registration Statement or the documents incorporated therein by reference, (iv) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or any Time of Sale Prospectus or for additional information, (v) the receipt by the Company or the Operating Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act, and (vi) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; and the Company and the Operating Partnership will make every reasonable effort to prevent the issuance of any such stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(e) The Company and the Operating Partnership will deliver to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and the Operating Partnership and will not use or refer to any proposed free writing prospectus that is reasonably objected to by the Underwriters.
(f) The Company and the Operating Partnership will not take any action that would result in an Underwriter, the Company or the Operating Partnership being required to file with the Commission pursuant to Rule 433(d) under the 1933 Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(g) The Company and the Operating Partnership will deliver to the Representatives as soon as possible as many signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) as the Representatives may reasonably request and will also deliver to the Representatives as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus) as the Representatives may reasonably request.
(h) If, during such period after the first date of the public offering of the Underwritten Securities Shares as in the reasonable opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in the Rule 173(a) under the 0000 XxxSecurities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriters, necessary to amend or supplement the Prospectus in order to make the Prospectus not misleading statements therein, in the light of the circumstances existing at when the time it Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 XxxSecurities Act) is delivered to a purchaser, not misleading, or if, in the Company and reasonable opinion of counsel for the Operating Partnership will forthwith Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, promptly to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses Bxxxx will furnish to the Company) to which Shares may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in form and substance reasonably satisfactory to counsel for the Underwriters) so that, Prospectus as so amended or supplemented, the Prospectus supplemented will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements thereinnot, in the light of the circumstances existing at when the time it ( Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 XxxSecurities Act) is delivered to a purchaser, not misleadingbe misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(h) If, at or after the time this Agreement is executed and delivered, it is necessary or appropriate for a post-effective amendment to the Registration Statement, or a Rule 462 Registration Statement, to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment or such Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Securities Act, as soon as possible; and the Company and will advise the Operating Partnership Representatives promptly and, if requested by the Representatives, will furnish to the Underwriters a reasonable number of copies of confirm such advice in writing, (i) when such post-effective amendment or supplementsuch Registration Statement has become effective, and (ii) if Rule 430A under the Securities Act is relied upon, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Securities Act (which the Company agrees to file in a timely manner in accordance with such Rules).
(i) The To file within the time periods required by the Exchange Act all reports and any definitive proxy or information statements required to be filed by the Company 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 for so long as the Operating Partnership will endeavordelivery of a prospectus (or, in cooperation lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required in connection with the Underwriters, offering or sale of the Shares.
(j) Promptly to qualify the Underwritten Securities for offering and sale under the applicable securities laws and real estate syndication laws of furnish such states and other jurisdictions information or to take such action as the Representatives may reasonably designate. In each jurisdiction in which request and otherwise to qualify the Underwritten Securities have been so qualified, Shares for offer and sale under the Company and the Operating Partnership will file such statements and reports as may be required by the securities or “blue sky” laws of such jurisdiction jurisdictions (domestic and foreign) as the Representatives shall reasonably request, and to continue comply with such qualification laws so as to permit the continuance of sales and dealings therein in effect such jurisdictions for so as long as may be required for necessary to complete the distribution of the Underwritten Securities.
(j) With Shares; provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject; and to promptly advise the Representatives of the receipt by the Company of any notification with respect to each sale of Underwritten Securities, the Company and the Operating Partnership will make generally available to its security holders as soon as practicable, but not later than 90 days after the close suspension of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 qualification of the 1933 Act Regulations) covering a twelve-month period beginning not later than Shares for offer or sale in any jurisdiction or the first day initiation or threatening of the Company’s fiscal quarter next following the “effective date” (as defined in said Rule 158) of the Registration Statementany proceeding for such purpose.
(k) The Company will use its best efforts to meet the requirements for qualification and the Operating Partnership, if applicable, during the period when the Prospectus is required to be delivered taxation as a REIT under the 1933 Act or Code for its short taxable year ending December 31, 2010 and thereafter until the 1934 Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 Board of Directors of the 1934 Act within Company determines that it is no longer in the time periods required by best interests of the 1934 Act and the 1934 Act RegulationsCompany to qualify as a REIT.
(l) The Company will file Pursuant to reasonable procedures developed in good faith, to retain copies of each Permitted Free Writing Prospectus that is not filed with the New York Stock Exchange all documents and notices required by Commission in accordance with Rule 433 under the New York Stock Exchange of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect to Preferred Stock, Depository Shares and Debt Securities, will use its commercially reasonable efforts to maintain the listing of any Underwritten Securities listed on the New York Stock ExchangeAct.
(m) With respect To make generally available to each offering the Company’s security holders and to the Representatives as soon as practicable an earnings statement covering a period of Debt Securities, at least twelve months beginning after the Operating Partnership will qualify an Indenture effective date of the Registration Statement (as defined in Rule 158(c) under the 1939 Securities Act), which shall satisfy the provisions of Section 11(a) of the Securities Act and will endeavor to have a Statement of Eligibility submitted on behalf of the TrusteeRule 158 thereunder.
(n) The Company and To use its best efforts to cause the Operating Partnership will take all reasonable action necessary Shares to enable Standard & Poor’s Ratings Services (“S&P”)be listed on the NYSE, Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization subject to provide their respective credit ratings official notice of any Underwritten Securities, if applicableissuance.
(o) Unless otherwise provided in During the applicable Terms Agreement, during a period beginning on the date of 90 this Agreement and continuing to and including 180 days from after the date of the applicable Terms Agreement relating to Underwritten SecuritiesProspectus, the Company and the Operating Partnership will not, without the prior written consent of Bxxxx with the Representativesauthorization to release the lock-up letter on behalf of the Underwriters, not to (i) to issue, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, shares of Common Stock or otherwise dispose of, (i) any securities of the same class or series; (ii) if such Terms Agreement relates to Preferred Stock that is convertible into or exercisable or exchangeable for Common Stock, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether such transaction described in clause (i) or (ii) above is to be settled by delivery of the Common Stock or Units such other securities, in cash or otherwise, (iii) file any registration statement with the Commission relating to the offering of any shares of Common Stock or any security securities convertible into or exercisable or exchangeable for shares of Common Stock, or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii) above. This transfer restriction does The restrictions contained in the preceding sentence shall not apply to (i) the possible Shares to be sold hereunder, (ii) any shares of Common Stock or other equity securities issued by the Company under the Company’s 2010 Equity Incentive Plan and the filing of a registration statement on Form S-8 in respect thereof, (iii) the issuance of common stock or OP Units in connection with the acquisition of medical office buildings or land suitable for development as a medical office building or other assets, (iv) the issuance by the Company of shares of Common Stock upon the exchange exercise of Units by holders an option or warrant or the conversion of Units other than a security outstanding on the directors and executive officers date of this Agreement of which Bxxxx has been advised in writing. Notwithstanding the foregoing, if (1) during the last 17 days of the Company180-day restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs; or (ii2) grants prior to the expiration of optionsthe 180-day restricted period, and the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 180-day period, the restrictions imposed by this Agreement, unless waived in writing, shall continue to apply until the expiration of the 18-day period beginning on the issuance of shares in respect the earnings release or the occurrence of such optionsthe material news or material event. The Company shall promptly notify Bxxxx of any earnings release, pursuant news or event that may give rise to a stock option plan; an extension of the initial 180-day restricted period.
(iiip) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real propertyTo prepare, if the recipient of such shares or other securities agrees in writing Representatives so request, a final term sheet relating to not, without the prior written consent of the lead managing underwriter of the offering of the Underwritten Shares, containing only information that describes the final terms of the Shares or the offering in a form consented to by the Representatives, and to file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for the offering of the Shares.
(q) To comply with Rule 433(d) under the Securities Act (without reliance upon Rule 164(b) under the Securities Act) and with Rule 433(g) under the Company and the Operating PartnershipSecurities Act.
(r) Not to take, directly or indirectly, sell, offer to sell, grant any option for the sale ofaction designed, or otherwise dispose which will constitute, or has constituted, or might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of such securities until the expiration of a 90-day period from the date of the applicable Terms Agreement.
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion facilitate the sale or resale of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable efforts to list the Common Stock on the New York Stock Exchange.
(r) The Company will use commercially reasonable efforts to continue to meet the requirements to qualify as a “real estate investment trust” under the CodeShares.
(s) If Not, at any time at or after the Registration Statement is an automatic shelf registration statement and execution of this Agreement, to offer or sell any Shares by means of any “prospectus” (within the third anniversary of the initial effective date of the Registration Statement occurs before all meaning of the Securities have been sold by Act) or use any “prospectus” (within the Underwriters, then the Company or the Operating Partnership, as applicable, will, prior to the third anniversary file a new shelf registration statement and take any other action necessary to permit the public offering meaning of the Securities to continue without interruption; references herein Act) in connection with the offer or sale of the Shares, except in each case other than the Prospectus.
(t) To maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(u) To apply the net proceeds to the Registration Statement shall include Company from the new registration statement declared effective sale of the Shares in the manner set forth under the caption “Use of Proceeds” in the Prospectus.
(v) In connection with the Directed Share Program, to ensure that the Directed Shares will be restricted to the extent and for the period required by FINRA from sale, transfer, assignment, pledge or hypothecation, and will direct the Commission;transfer agent to place stop transfer restrictions upon such Directed Shares for such period of time.
(w) To comply with all applicable securities and other laws, in each jurisdiction in which the Directed Shares are offered in connection with a Directed Share Program.
Appears in 1 contract
Samples: Underwriting Agreement (Richmond Honan Medical Properties Inc.)
Covenants of the Company and the Operating Partnership. Each of the Company and the Operating Partnership covenants with the Representatives, and with each Underwriter participating in the offering of Underwritten Securities, as follows:
(a) In respect to each offering of Underwritten Securities, the Company or the Operating Partnership, as the case may be, will prepare a Prospectus Supplement setting forth the number of Underwritten Securities covered thereby and their terms not otherwise specified in the Prospectus pursuant to which the Underwritten Securities are being issued, the names of the Underwriters participating in the offering and the number of Underwritten Securities which each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, the price at which the Underwritten Securities are to be purchased by the Underwriters from the Company or the Operating Partnership, as the case may be, the initial public offering price, if any, the selling concession and reallowance, if any, and such other information as the Representatives and the Company or the Operating Partnership, as the case may be, deem appropriate in connection with the offering of the Underwritten Securities; and the Company or the Operating Partnership, as the case may be, will promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations and will furnish to the Underwriters named in the applicable Terms Agreement therein as many copies of the Time of Sale Prospectus and the Prospectus (including any such Prospectus Supplement) as the Representatives shall reasonably request.
(b) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, file with the Commission and furnish, at their own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 430B of the 1933 Act Regulations, then immediately following the execution of the Terms Agreement, the Company and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, 430A and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplementcopy of an amended Prospectus, or, if required by such Rule 430A or 430B430A, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and the Operating Partnership will pay the registration fees for each offering of securities within the time period required by Rule 456(b)(1)(i) under the 1933 Act prior to the Closing Time. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than the date of execution of the Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(dc) The Company and the Operating Partnership will notify the Representatives immediately, and confirm such notice in writing, of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 Act, (iii) the receipt of any comments from the Commission regarding the Registration Statement or the documents incorporated therein by referenceCommission, (iv) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or any Time of Sale Prospectus or for additional information, and (v) the receipt by the Company or the Operating Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act, and (vi) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; and the Company and the Operating Partnership will make every reasonable effort to prevent the issuance of any such stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(ed) The At any time when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, the Company and the Operating Partnership will deliver give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement or any amendment or supplement to the Prospectus, whether pursuant to the 1933 Act, 1934 Act or otherwise, will furnish the Representatives with copies of any such amendment or supplement a copy reasonable amount of each time prior to such proposed free writing prospectus to be prepared filing and, unless required by or on behalf oflaw, used by, or referred to by the Company and the Operating Partnership and will not file or use any such amendment or refer supplement or other documents in a form to any proposed free writing prospectus that is which the Representatives or counsel for the Underwriters shall reasonably objected to by the Underwritersobject.
(f) The Company and the Operating Partnership will not take any action that would result in an Underwriter, the Company or the Operating Partnership being required to file with the Commission pursuant to Rule 433(d) under the 1933 Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(ge) The Company and the Operating Partnership will deliver to the Representatives as soon as possible as many signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) as the Representatives may reasonably request and will also deliver to the Representatives as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus) as the Representatives may reasonably request.
(hf) IfThe Company and the Operating Partnership will furnish to each Underwriter, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such period after the first date number of the public offering copies of the Underwritten Securities as the Prospectus (as amended or in lieu thereof supplemented) as such Underwriter may reasonably request for the notice referred to in purposes contemplated by the Rule 173(a1933 Act or the 1934 Act or the respective applicable rules and regulations of the Commission thereunder.
(g) under the 0000 Xxx) is required by law to be delivered in connection with sales by an Underwriter or dealer, If any event shall occur as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriters, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it ( or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, not misleading, and the Company and the Operating Partnership will furnish to the Underwriters a reasonable number of copies of such amendment or supplement.
(ih) The Company and the Operating Partnership will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions as the Representatives may reasonably designate. In each jurisdiction in which the Underwritten Securities have been so qualified, the Company and the Operating Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities.
(ji) With respect to each sale of Underwritten Securities, the Company and the Operating Partnership will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of the Company’s 's fiscal quarter next following the “"effective date” " (as defined in said Rule 158) of the Registration Statement.
(j) Each of the Company and the Operating Partnership will use the net proceeds received by it from the sale of the Underwritten Securities in the manner specified in the Prospectus under "Use of Proceeds."
(k) The Company and the Operating Partnership, if applicable, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(l) The Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect to Preferred Stock, Depository Shares and Debt Securities, will use its commercially reasonable best efforts to maintain the listing of any Underwritten Securities listed on the New York Stock Exchange.
(m) With In respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services 's Corporation (“"S&P”"), Xxxxx’x Xxxxx'x Investors Service, Inc. (“Xxxxx’x”"Xxxxx'x") or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable.
(o) Unless otherwise provided in the applicable Terms Agreement, during During a period of 90 days from the date of the applicable Terms Agreement any Prospectus Supplement relating to Underwritten Securities, the Company and the Operating Partnership will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; series or ranking on a parity with any Underwritten Securities (other than the Underwritten Securities covered by such Prospectus Supplement or any security convertible into or exchangeable for shares of such Underwritten Securities and (ii) if such Terms Agreement Prospectus Supplement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than DMI Partnership (except as to Units exchanged by DMI Partnership pursuant to a Unit bonus plan for employees of the Company and its subsidiaries) and the directors and executive officers of the Company; (ii) grants of options, and the issuance of shares in respect of such options, pursuant to a stock option plan; (iii) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter of the offering of the Underwritten Securities Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date of the applicable Terms Agreementany Prospectus Supplement.
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable its best efforts to list the Common Stock on the New York Stock Exchange.
(r) The Company will use commercially reasonable its best efforts to continue to meet the requirements to qualify as a “"real estate investment trust” " under the Code.
(s) If During the Registration Statement is an automatic shelf registration statement period from the Closing Time until five years after the Closing Time, the Company and the third anniversary Operating Partnership will deliver to the Representatives, (i) promptly upon their becoming available, copies of all current, regular and periodic reports of the initial effective date Company mailed to its stockholders or filed with any securities exchange or with the Commission or any governmental authority succeeding to any of the Registration Statement occurs before all of the Securities have been sold by the UnderwritersCommission's functions, then and (ii) such other information concerning the Company or and the Operating Partnership, Partnership as applicable, will, prior to the third anniversary file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission;Representatives may reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Duke Realty Investments Inc)
Covenants of the Company and the Operating Partnership. Each of the Company and the Operating Partnership severally covenants and agrees with the Representatives, and with each Underwriter participating in the offering of Underwritten Securities, as followsUnderwriters that:
(a) In respect The Company will (A) file with the Commission pursuant to each and in accordance with Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Underwriters containing information previously omitted at the time of effectiveness of the Registration Statement not later than the second business day following the execution and delivery of this Agreement, (B) not file any amendment to the Registration Statement or supplement to the Prospectus or document incorporated by reference therein of which the Underwriters shall not previously have been advised and furnished with a copy or to which the Underwriters shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of Underwritten Securities, the Company or Shares by the Operating Partnership, as the case may be, will furnish to the Underwriters named in the applicable Terms Agreement as many copies of the Time of Sale Prospectus and the Prospectus (including any Prospectus Supplement) as the Representatives shall reasonably requestUnderwriters.
(b) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the The Company or the Operating Partnership will prepare, file with the Commission and furnish, at their own expense, to advise the Underwriters and to promptly (A) when any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 430B of the 1933 Act Regulations, then immediately following the execution of the Terms Agreement, the Company and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplement, or, if required by such Rule 430A or 430B, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and the Operating Partnership will pay the registration fees for each offering of securities within the time period required by Rule 456(b)(1)(i) under the 1933 Act prior to the Closing Time. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than the date of execution of the Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(d) The Company and the Operating Partnership will notify the Representatives immediately, and confirm such notice in writing, of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 Actshall have been filed, (iiiB) the of receipt of any comments from the Commission, (C) of any request of the Commission regarding for amendment of the Registration Statement or the documents incorporated therein by reference, (iv) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for any Time of Sale Prospectus or for additional information, (v) the receipt by the Company or the Operating Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act, and (viD) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation use of the Prospectus or of the institution of any proceedings for that purpose; and the . The Company and the Operating Partnership will make every reasonable effort use its best efforts to prevent the issuance of any such stop order andpreventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(c) The Company will cooperate with the Underwriters in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Underwriters may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign trust or to file a general consent to service of process in any stop jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Shares.
(d) The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Prospectus is issuedrequired under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to obtain the lifting thereof Underwriters at or before the earliest possible momentClosing Date, one signed copy of the Registration Statement in the form it became effective and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the Underwriters may reasonably request.
(e) The Company will comply with the Act and the Operating Partnership will deliver to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf ofRules and Regulations, used by, or referred to by the Company and the Operating Partnership and will not use or refer to any proposed free writing prospectus that is reasonably objected to by the Underwriters.
(f) The Company Exchange Act, and the Operating Partnership will not take any action that would result in an Underwriter, the Company or the Operating Partnership being required to file with rules and regulations of the Commission pursuant thereunder, so as to Rule 433(d) under permit the 1933 Act a free writing prospectus prepared by or on behalf completion of the Underwriter that distribution of the Underwriter otherwise would not have been required to file thereunder.
(g) The Company Shares as contemplated in this Agreement and the Operating Partnership will deliver to Prospectus. If during the Representatives as soon as possible as many signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) as the Representatives may reasonably request and will also deliver to the Representatives as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus) as the Representatives may reasonably request.
(h) If, during such period after the first date of the public offering of the Underwritten Securities as the Prospectus (or in lieu thereof the notice referred to in the Rule 173(a) under the 0000 Xxx) which a prospectus is required by law to be delivered in connection with sales by an Underwriter the Underwriters or a dealer, any event shall occur as a result of which it is necessarywhich, in the judgment of the Company or in the reasonable opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it ( or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) Prospectus is delivered to a purchaser, not misleading, and or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (i) prepare and file with the Operating Partnership will furnish Commission an appropriate amendment to the Underwriters a reasonable number Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of copies of such amendment the circumstances when it is so delivered, be misleading, or supplementso that the Prospectus will comply with the law.
(if) The Company and the Operating Partnership will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions as the Representatives may reasonably designate. In each jurisdiction in which the Underwritten Securities have been so qualified, the Company and the Operating Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities.
(j) With respect to each sale of Underwritten Securities, the Company and the Operating Partnership will make generally available to its security holders holders, as soon as practicableit is practicable to do so, but in any event not later than 90 days 15 months after the close filing of the period covered therebyProspectus, an earnings earning statement (which need not be audited) in form complying with reasonable detail, covering a period of at least 12 consecutive months beginning after the provisions filing of the Prospectus, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined Rules and Regulations and will advise you in said Rule 158) of the Registration Statementwriting when such statement has been so made available.
(kg) The Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any fiscal quarter subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Operating Partnership, if applicable, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act RegulationsProspectus.
(lh) The Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange andNo offering, unless otherwise agreed upon with respect to Preferred Stocksale, Depository Shares and Debt Securities, will use its commercially reasonable efforts to maintain the listing short sale or other disposition of any Underwritten Securities listed on the New York Stock Exchange.
(m) With respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf Common Shares of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable.
(o) Unless otherwise provided in the applicable Terms Agreement, during a period of 90 days from the date of the applicable Terms Agreement relating to Underwritten Securities, the Company and the Operating Partnership will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; (ii) if such Terms Agreement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of options, and the issuance of shares in respect of such options, pursuant to a stock option plan; (iii) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common StockShares or derivative of Common Shares (or agreement for such) will be made for a period of 90 days after the date of this Agreement, in connection directly or indirectly, by the Company otherwise than hereunder or with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter Underwriters other than the issuance of Common Shares upon conversion of outstanding preferred shares of the offering Company or OP units or upon exercise of stock options issued by the Underwritten Securities and the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date of the applicable Terms AgreementCompany.
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable efforts to list the Common Stock on the New York Stock Exchange.
(ri) The Company will use commercially reasonable its best efforts to continue to meet the requirements to qualify as a “real estate investment trust” REIT under the Code, subject to the fiduciary duties of the Board of Trustees of the Company to manage the business of the Company in the best interest of its shareholders.
(sj) If the Registration Statement is an automatic shelf registration statement The Company has caused each officer and the third anniversary trustee of the initial effective Company to furnish to you, on or prior to the date of the Registration Statement occurs before all this Agreement, a letter or letters, in form and substance satisfactory to you, pursuant to which each such person shall agree not to offer, sell, sell short or otherwise dispose of any Common Shares of the Securities have been sold by Company or OP Units of the Underwriters, then Operating Partnership or other capital stock of the Company or the Operating Partnership, as applicable, will, prior to the third anniversary file a new shelf registration statement and take or any other action necessary to permit securities convertible, exchangeable or exercisable for Common Shares or OP Units or derivative of Common Shares or OP Units owned by such person or request the public offering registration for the offer or sale of any of the Securities foregoing (or as to continue without interruption; references herein which such person has the right to direct the Registration Statement disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of the Underwriters (collectively, the “Lock-up Agreements”).
(k) The Company shall include apply the new registration statement declared effective net proceeds of its sale of the Shares as set forth in the Prospectus.
(l) The Company shall not invest, or otherwise use the proceeds received by the Commission;Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act.
(m) The Company will maintain a transfer agent and, if necessary under the jurisdiction of organization of the Company, a registrar for the Common Shares.
(n) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
Appears in 1 contract
Samples: Equity Underwriting Agreement (Ramco Gershenson Properties Trust)
Covenants of the Company and the Operating Partnership. Each of the Company and the Operating Partnership severally covenants and agrees with the Representatives, and with each Underwriter participating in the offering of Underwritten Securities, as followsseveral Underwriters that:
(a) In respect The Company will (A) use its best efforts to each offering of Underwritten Securities, the Company or the Operating Partnership, as the case may be, will furnish to the Underwriters named in the applicable Terms Agreement as many copies of the Time of Sale Prospectus and the Prospectus (including any Prospectus Supplement) as the Representatives shall reasonably request.
(b) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in cause the Registration Statement then on fileto become effective or, or ifif the procedure in Rule 430A of the Rules and Regulations is followed, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, prepare and timely file with the Commission and furnish, at their own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed with the Commission pursuant to under Rule 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 430B of the 1933 Act Regulations, then immediately following the execution of the Terms Agreement, the Company Rules and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, and Rule 424(b) of the 1933 Act Regulations, Regulations a Prospectus Supplement, or, if required in a form approved by such Rule 430A or 430B, a post-effective amendment to the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and the Operating Partnership will pay the registration fees for each offering of securities within the time period required by in reliance on Rule 456(b)(1)(i) under the 1933 Act prior to the Closing Time. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than the date of execution 430A of the Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company Rules and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(d) The Company and the Operating Partnership will notify the Representatives immediately, and confirm such notice in writing, of (i) the effectiveness of any amendment to the Registration Statement, (iiB) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 Act, (iii) the receipt of any comments from the Commission regarding the Registration Statement or the documents incorporated therein by reference, (iv) any request by the Commission for not file any amendment to the Registration Statement or any amendment or supplement to the Prospectus or document incorporated by reference therein of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any Time of Sale Prospectus definitive proxy or for additional information, (v) the receipt information statements required to be filed by the Company or with the Operating Partnership of any notice of objection Commission subsequent to the date of the Commission Prospectus and prior to the use termination of the offering of the Shares by the Underwriters.
(b) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto pursuant shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to Rule 401(g)(2) under the 1933 ActProspectus or for any additional information, and (viD) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation use of the Prospectus or of the institution of any proceedings for that purpose; and the . The Company and the Operating Partnership will make every reasonable effort use its best efforts to prevent the issuance of any such stop order andpreventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(ec) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Operating Partnership Company shall not be required to qualify as a foreign trust or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports and other documents as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(d) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives a copy of each proposed free writing prospectus to be prepared by at or on behalf ofbefore the Closing Date, used by, or referred to by the Company and the Operating Partnership and will not use or refer to any proposed free writing prospectus that is reasonably objected to by the Underwriters.
(f) The Company and the Operating Partnership will not take any action that would result in an Underwriter, the Company or the Operating Partnership being required to file with the Commission pursuant to Rule 433(d) under the 1933 Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(g) The Company and the Operating Partnership will deliver to the Representatives as soon as possible as many four signed copies of the Registration Statement as originally and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of each amendment thereto copies of the Registration Statement (including such number of copies of the exhibits filed therewith or incorporated by reference therein and that may reasonably be requested), including documents incorporated by reference therein) as the Representatives may reasonably request and will also deliver to the Representatives as many conformed copies of the Registration Statement as originally filed , and of each amendment thereto (including documents incorporated by reference into the Prospectus) all amendments thereto, as the Representatives may reasonably request.
(he) IfThe Company will comply with the Act and the Rules and Regulations, during such period after and the first date Exchange Act, and the rules and regulations of the public offering Commission thereunder, so as to permit the completion of the Underwritten Securities distribution of the Shares as contemplated in this Agreement and the Prospectus (or Prospectus. If during the period in lieu thereof the notice referred to in the Rule 173(a) under the 0000 Xxx) which a prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur as a result of which it is necessarywhich, in the judgment of the Company or in the reasonable opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it ( or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) Prospectus is delivered to a purchaser, not misleading, and or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (i) prepare and file with the Operating Partnership will furnish Commission an appropriate amendment to the Underwriters a reasonable number Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of copies of such amendment the circumstances when it is so delivered, be misleading, or supplementso that the Prospectus will comply with the law.
(if) The Company and the Operating Partnership will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions as the Representatives may reasonably designate. In each jurisdiction in which the Underwritten Securities have been so qualified, the Company and the Operating Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities.
(j) With respect to each sale of Underwritten Securities, the Company and the Operating Partnership will make generally available to its security holders holders, as soon as practicableit is practicable to do so, but in any event not later than 90 days 15 months after the close effective date of the period covered therebyRegistration Statement, an earnings earning statement (which need not be audited) in form complying with reasonable detail, covering a period of at least 12 consecutive months beginning after the provisions effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined Rules and Regulations and will advise you in said Rule 158) of the Registration Statementwriting when such statement has been so made available.
(kg) The Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any fiscal quarter subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Operating Partnership, if applicable, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act RegulationsProspectus.
(lh) The Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange andNo offering, unless otherwise agreed upon with respect to Preferred Stocksale, Depository Shares and Debt Securities, will use its commercially reasonable efforts to maintain the listing short sale or other disposition of any Underwritten Securities listed on the New York Stock Exchange.
(m) With respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf Common Shares of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable.
(o) Unless otherwise provided in the applicable Terms Agreement, during a period of 90 days from the date of the applicable Terms Agreement relating to Underwritten Securities, the Company and the Operating Partnership will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; (ii) if such Terms Agreement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of options, and the issuance of shares in respect of such options, pursuant to a stock option plan; (iii) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common StockShares or derivative of Common Shares (or agreement for such) will be made for a period of 90 days after the date of this Agreement, in connection directly or indirectly, by the Company otherwise than hereunder or with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of Deutsche Bank Securities Inc. other than the lead managing underwriter issuance of Common Shares upon conversion of outstanding preferred shares of the offering Company or OP units or upon exercise of stock options issued by the Underwritten Securities and the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date of the applicable Terms AgreementCompany.
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable efforts to list the Common Stock on the New York Stock Exchange.
(ri) The Company will use commercially reasonable its best efforts to continue to meet the requirements to qualify as a “real estate investment trust” REIT under the Code, subject to the fiduciary duties of the Board of Trustees of the Company to manage the business of the Company in the best interest of its shareholders.
(sj) If the Registration Statement is an automatic shelf registration statement The Company has caused each officer and the third anniversary trustee of the initial effective Company to furnish to you, on or prior to the date of the Registration Statement occurs before all of the Securities have been sold by this Agreement, a letter or letters, in form and substance satisfactory to the Underwriters, then pursuant to which each such person shall agree not to offer, sell, sell short or otherwise dispose of any Common Shares of the Company or OP Units of the Operating Partnership or other capital stock of the Company or the Operating Partnership, as applicable, will, prior to the third anniversary file a new shelf registration statement and take or any other action necessary to permit securities convertible, exchangeable or exercisable for Common Shares or OP Units or derivative of Common Shares or OP Units owned by such person or request the public offering registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Deutsche Bank Securities to continue without interruption; references herein to Inc. (collectively, the Registration Statement "Lock-up Agreements").
(k) The Company shall include apply the new registration statement declared effective net proceeds of its sale of the Shares as set forth in the Prospectus.
(l) The Company shall not invest, or otherwise use the proceeds received by the Commission;Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act.
(m) The Company will maintain a transfer agent and, if necessary under the jurisdiction of organization of the Company, a registrar for the Common Shares.
(n) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
Appears in 1 contract
Samples: Equity Underwriting Agreement (Ramco Gershenson Properties Trust)
Covenants of the Company and the Operating Partnership. Each of the Company and the Operating Partnership Partnership, jointly and severally, covenants with the Representativesyou, and with each Underwriter participating in the offering of Underwritten Securitiesthe Shares, as follows:
(a) In respect The Company will comply, subject to each the remainder of this clause (a), with the requirements of Rule 430B. Prior to the termination of the offering of Underwritten Securitiesthe Shares, the Company will not use or file any amendment to the Registration Statement or amendment or supplement to the Disclosure Package or the Operating Partnership, as the case may be, will furnish Prospectus or any new registration statement relating to the Underwriters named 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 Representatives 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, properly completed, and any supplement thereto to be filed in the applicable Terms Agreement as many copies of the Time of Sale Prospectus and the Prospectus (including any Prospectus Supplement) as a form to which the Representatives shall not have reasonably request.
(b) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, file with the Commission and furnish, at their own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed objected with the Commission pursuant to Rule the applicable paragraph of 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 430B of the 1933 Act Regulations, then immediately following the execution of the Terms Agreement, the Company and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplement, or, if required by such Rule 430A or 430B, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and the Operating Partnership will pay the registration fees for each offering of securities within the time period required by Rule 456(b)(1)(i) under the 1933 Act prior prescribed and will provide evidence satisfactory to the Closing TimeRepresentatives of such timely filing. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than the date of execution of the Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(d) The Company and the Operating Partnership will notify promptly advise the Representatives immediately, and confirm such notice in writing, (a) of (i) the effectiveness of any amendment to the Registration StatementStatement or any new registration statement relating to the Shares, (iib) of the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus or any document to be filed pursuant to the 1933 1934 Act, (iiic) of the receipt of any comments from the Commission regarding with respect to the Registration Statement or the Prospectus or documents incorporated therein or deemed to be incorporated by referencereference therein, (ivd) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or any Time of Sale Prospectus or for additional informationinformation relating thereto, (ve) the receipt by the Company or the Operating Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act, and (vi) the issuance by the Commission of any stop order by the Commission suspending the effectiveness of the Registration Statement 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 initiation Prospectus or the institution or threatening of any proceedings for that purpose; and 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 Operating Partnership 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 make every use its commercially reasonable effort efforts to prevent the issuance of any such stop order or the suspension of any such qualification, and, if any stop order is issued, to obtain promptly, the lifting thereof withdrawal thereof. The Company shall pay the required Commission filing fees relating to the Shares 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 Shares remain unsold by the Underwriters, the Company 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 Shares, in a form to which you shall not have reasonably objected. If at the earliest 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 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 effectiveness. References herein to the “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 (or but for the exception afforded by Rule 172 of the 1933 Act Regulations (“Rule 172”) would be required to be delivered) under the 1933 Act, any event or development occurs as a result of which, in the opinion of counsel for the Underwriters or for the Company, the Registration Statement or the Prospectus would include any untrue statement of a material fact or omit to state any material fact 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, or if it shall be necessary, in the opinion of counsel for the Underwriters or for the Company, to amend the Registration Statement or amend or supplement the Prospectus to comply with the 1933 Act or the 1933 Act Regulations or to file a new registration statement relating to the Shares, 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 its commercially reasonable efforts to have any such amendment to the Registration Statement or new registration statement declared effective as soon as possible moment(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 Company, the Disclosure Package contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it is used, not misleading, the Company promptly will (1) notify the Representatives of any such event or development, (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 Underwriters or for the Company, conflicted or would conflict with the information contained in the Registration Statement (or any other registration statement relating to the Shares), the Statutory Prospectus or the Prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company will promptly notify the 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 Company agrees 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 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 II; provided that the prior written consent of the Underwriters shall be deemed to have been given in respect of the 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 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 Underwriters, 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 Underwriters or counsel for the Underwriters shall reasonably object.
(e) The Company and the Operating Partnership has furnished or will deliver furnish to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and the Operating Partnership and will not use or refer to any proposed free writing prospectus that is reasonably objected to by the Underwriters.
(f) The Company and the Operating Partnership will not take any action that would result in an Underwriter, the Company or the Operating Partnership being required to file with the Commission pursuant to Rule 433(d) under the 1933 Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(g) The Company and the Operating Partnership will deliver to the Representatives as soon as possible 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 Representatives may such Underwriter reasonably request and will also deliver to the Representatives as many conformed copies of the requests. The Registration Statement as originally filed and of each amendment thereto (including documents incorporated 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 reference into the Prospectus) as the Representatives may reasonably request.Regulation S-T.
(hf) IfThe Company will furnish, without charge, to each Underwriter, from time to time during such the period after the first date of the public offering of the Underwritten Securities as when the Prospectus (or or, in lieu thereof the notice referred to in the Rule 173(a) under the 0000 Xxx) is required by law to be delivered in connection with sales by an Underwriter or dealerthereof, any event shall occur as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriters, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it (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, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so amended or supplemented1933 Act Regulations, the Prospectus will not include an untrue statement of a material fact 1934 Act or omit to state a material fact necessary the 1934 Act Regulations in order to make the statements therein, in the light connection with sales of the circumstances existing at the time it ( or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaserShares, not misleading, and the Company and the Operating Partnership will furnish to the Underwriters a reasonable such number of copies of the Prospectus (as amended or supplemented) as such amendment Underwriter may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or supplement.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.
(ig) The Company and the Operating Partnership will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities 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 Representatives may reasonably designate. In ; and in each jurisdiction in which the Underwritten Securities Shares have been so qualified, the Company and the Operating Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten SecuritiesShares; provided, however, that neither 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.
(jh) With respect to each sale of Underwritten SecuritiesShares, the Company and the Operating Partnership will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-twelve month period beginning not later than the earlier of the first day of the Company’s fiscal quarter quarter, respectively, next following the “effective date” (as defined in said such Rule 158) of the Registration Statement.
(ki) The Company and the Operating PartnershipPartnership will use their commercially reasonable efforts to meet the requirements to qualify as a REIT and a partnership, if applicablerespectively, 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 ActAct Regulations in connection with sales of the Shares, will file all documents required to be filed with the Commission pursuant to Sections Section 13, 14 or 15 of the 1934 Act within the time periods required prescribed by the 1934 Act and the 1934 Act Regulations.
(lk) The Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect to Preferred Stock, Depository Shares and Debt Securities, will use its commercially reasonable efforts to maintain the listing of any Underwritten Securities listed on the New York Stock Exchange.
(m) With respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable.
(o) Unless otherwise provided in the applicable Terms Agreement, during a period of 90 days from the date of the applicable Terms Agreement relating to Underwritten Securities, the Company and the Operating Partnership will not, without the prior written consent of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the Representativesdisposition during the period described in this subsection (l) (whether by actual disposition or effective 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, sell, offer to sell, grant any option for including the sale filing (or participation in the filing) of a registration statement with the Commission in respect of, enter into any agreement to sell), or otherwise dispose ofestablish or 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 effect any such transaction, for a period beginning at the time of execution of this Agreement and ending 30 days after the date of the Prospectus; provided that this Section 3(k) shall not prohibit any issuance of Common Shares (i1) any as a result of the conversion, exercise or exchange of securities of the same class Company or series; (ii) if such Terms Agreement relates to Preferred Stock the Operating Partnership issued and outstanding as of the Time of Sale that is are convertible into or exercisable or exchangeable for Common Stock, any Common Stock Shares or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply (2) pursuant to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of options’s existing employee benefit plan. In addition, and the issuance of shares in respect of such options, pursuant to a stock option plan; (iii) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter of the offering of the Underwritten Securities and the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date of the applicable Terms Agreement.
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company Partnership will use commercially reasonable efforts to list prevent the Common Stock on executive officers and directors of the New York Stock ExchangeCompany from violating the terms of their respective lock-up agreements delivered pursuant to Section 5(a) hereof.
(rl) The Company will use commercially reasonable efforts to continue to meet the requirements to qualify as a “real estate investment trust” net proceeds received by it from each sale of Shares in the manner set forth in the Disclosure Package and the Prospectus under the Codecaption “Use of Proceeds.”
(m) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(sn) If Prior to the Registration Statement is an automatic shelf registration statement and the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the UnderwritersClosing Date, then the Company or shall have completed all required filings with the Operating PartnershipNYSE and other necessary actions in order to cause the Shares to be listed and admitted and authorized for trading on the NYSE, as applicable, will, prior subject to the third anniversary file a new shelf registration statement and take any other action necessary to permit the public offering notice of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission;issuance.
Appears in 1 contract
Samples: Underwriting Agreement (Tanger Properties LTD Partnership /Nc/)
Covenants of the Company and the Operating Partnership. Each of the ------------------------------------------------------ Company and the Operating Partnership covenants with the Representatives, and with each Underwriter participating in the offering of Underwritten SecuritiesUnderwriter, as follows:
(a) In respect The Operating Partnership will prepare a prospectus supplement (a "Prospectus Supplement") setting forth the number of Debt Securities ---------------------- covered thereby and their terms not otherwise specified in the Prospectus pursuant to each offering of Underwritten Securitieswhich the Debt Securities are being issued, the Company or name of the Underwriter participating in the offering and the number of Debt Securities which the Underwriter has agreed to purchase, the price at which the Debt Securities are to be purchased by the Underwriter from the Operating Partnership, the selling concession and reallowance, if any, any delayed delivery arrangements, and such other information as the case may beUnderwriter and the Operating Partnership deem appropriate in connection with the offering of the Debt Securities; and the Operating Partnership will, will furnish to by the Underwriters named close of business in New York on two business days immediately succeeding the applicable Terms Agreement as many date hereof, transmit copies of the Time of Sale Prospectus and Prospectus, relating to the Prospectus (including any Prospectus Supplement) as the Representatives shall reasonably request.
(b) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, file with the Commission and furnish, at their own expenseDebt Securities, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed with the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 430B Regulations and will furnish to the Underwriter as many copies of the 1933 Act Regulations, then immediately following the execution of the Terms Agreement, the Company and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with Prospectus (including such Rule 430A, 430B, and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplement, or, if required by such Rule 430A or 430B, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and the Operating Partnership will pay the registration fees for each offering of securities within the time period required by Rule 456(b)(1)(i) under the 1933 Act prior to the Closing Time. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than the date of execution of the Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership as shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulationsreasonably be requested.
(db) The Company and or the Operating Partnership will notify the Representatives Underwriter immediately, and confirm such notice in writing, of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus or any document to be filed pursuant to the 1933 Act1934 Act with respect to the Registration Statement or the Prospectus relating to the Debt Securities, (iii) the receipt of any comments from the Commission regarding with respect to the Registration Statement or the documents incorporated therein by referenceProspectus relating to the Debt Securities, (iv) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or any Time of Sale Prospectus or for additional information, (v) the receipt by the Company or the Operating Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 ActProspectus, and (viv) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; and the . The Company and the Operating Partnership will make every reasonable effort to prevent the issuance of any such stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(ec) At any time when the Prospectus relating to the Debt Securities is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Debt Securities, the Company or the Operating Partnership will give the Underwriter notice of its intention to file or prepare any amendment to the Registration Statement or any amendment or supplement to the Prospectus, whether pursuant to the 1933 Act, 1934 Act or otherwise, including any revised Prospectus which the Operating Partnership proposes for use by the Underwriter in connection with an offering of Debt Securities which differs from the Prospectus on file at the Commission at the time the Registration Statement first becomes effective, whether or not such revised Prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act Regulations, and will furnish the Underwriter with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or preparation, as the case may be, and will not file or prepare any such amendment or supplement or other documents in a form to which the Underwriter or counsel for the Underwriter shall reasonably object.
(d) The Company and or the Operating Partnership will deliver to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and the Operating Partnership and will not use or refer to any proposed free writing prospectus that is reasonably objected to by the Underwriters.
(f) The Company and the Operating Partnership will not take any action that would result in an Underwriter, the Company or the Operating Partnership being required to file with the Commission pursuant to Rule 433(d) under the 1933 Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(g) The Company and the Operating Partnership will deliver to the Representatives as soon as possible 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 Representatives may Underwriter reasonably request and will also deliver to the Representatives as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus) as the Representatives may reasonably requestrequests.
(he) IfThe Operating Partnership will furnish to the Underwriter, from time to time during such the period after the first date of the public offering of the Underwritten Securities as when the Prospectus (or in lieu thereof the notice referred to in the Rule 173(a) under the 0000 Xxx) is required by law to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Debt Securities, such number of copies of the Prospectus (as amended or supplemented) as the Underwriter may reasonably request for the purposes contemplated by an Underwriter the 1933 Act, the 1933 Act Regulations, the 1934 Act or dealer, the 1934 Act Regulations.
(f) If at any time when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Debt Securities any event shall occur or condition shall exist as a result of which it is necessary, in the reasonable opinion of counsel for the UnderwritersUnderwriter or counsel for the Operating Partnership, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so amended or supplemented, that the Prospectus will not include an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein not misleading in the light of the circumstances existing at the time it ( or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, not misleadingor if it shall be necessary, in the opinion of either such counsel, at any such time to amend or supplement the Registration Statement or the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, then the Company or the Operating Partnership, as the case may be, will promptly prepare and file with the Commission such amendment or supplement, whether by filing documents pursuant to the 1933 Act, the 1934 Act or otherwise, as may be necessary to correct such untrue statement or omission or to make the Registration Statement and Prospectus comply, in the opinion of counsel to the Underwriter or Counsel to the Operating Partnership, with such requirements, and the Company and or the Operating Partnership Partnership, as the case may be, will furnish to the Underwriters Underwriter a reasonable number of copies of such amendment or supplement.
(ig) The Company and the Operating Partnership will endeavor, in cooperation with the UnderwritersUnderwriter, to qualify the Underwritten Debt Securities for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions of the United States as the Representatives Underwriter may reasonably designate; provided, however, that the Operating Partnership shall not be obligated to qualify as a foreign corporation in any jurisdiction where it is not so qualified. In each jurisdiction in which the Underwritten Debt Securities have been so qualified, the Company and the Operating Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Debt Securities; provided, however, that the Operating Partnership shall not be obligated to qualify as a foreign corporation in any jurisdiction where it is not so qualified.
(jh) With respect to each sale of Underwritten Securities, the Company and the The Operating Partnership will timely file such reports pursuant to the 1934 Act as are necessary in order to make generally available to its security holders securityholders as soon as practicable, but not later than 90 days after the close of the period covered thereby, practicable an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-month period beginning not later than for the first day purposes of, and to provide the benefits contemplated by, the last paragraph of the Company’s fiscal quarter next following the “effective date” (as defined in said Rule 158Section 11(a) of the Registration Statement1933 Act.
(i) The Company will use its best efforts to meet the requirements to qualify as a "real estate investment trust" under the Code for the taxable year in which sales of the Debt Securities are to occur.
(j) The Operating Partnership will use the net proceeds received by it from the sale of the Debt Securities in the manner specified in the Prospectus under the caption "Use of Proceeds."
(k) The Company and or the Operating Partnership, if applicable, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 ActAct in connection with sales of the Debt Securities, will file all documents required to be filed with the Commission pursuant to Sections Section 13, 14 or 15 of the 1934 Act within the time periods required prescribed by the 1934 Act and the 1934 Act Regulations.
(l) The Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect to Preferred Stock, Depository Shares and Debt Securities, will use its commercially reasonable efforts to maintain the listing of any Underwritten Securities listed on the New York Stock Exchange.
(m) With respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable.
(o) Unless otherwise provided in the applicable Terms Agreement, during a period of 90 days from the date of the applicable Terms Agreement relating to Underwritten Securities, the Company and the Operating Partnership will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; (ii) if such Terms Agreement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of options, and the issuance of shares in respect of such options, pursuant to a stock option plan; (iii) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter of the offering of the Underwritten Securities and the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date of the applicable Terms Agreement.
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable efforts to list the Common Stock on the New York Stock Exchange.
(r) The Company will use commercially reasonable efforts to continue to meet the requirements to qualify as a “real estate investment trust” under the Code.
(s) If the Registration Statement is an automatic shelf registration statement and the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, then the Company or the Operating Partnership, as applicable, will, prior to the third anniversary file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission;
Appears in 1 contract
Covenants of the Company and the Operating Partnership. Each of the Company and the Operating Partnership covenants with the Representatives, and with each Underwriter participating in the offering of Underwritten Securities, as follows:
(a) In respect to each offering of Underwritten Securities, the Company or the Operating Partnership, as the case may be, will furnish to the Underwriters named in the applicable Terms Agreement as many copies of the Time of Sale Prospectus and the Prospectus (including any Prospectus Supplement) as the Representatives shall reasonably request.
(b) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, file with the Commission and furnish, at their own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 430B of the 1933 Act Regulations, then immediately following the execution of the Terms Agreement, the Company and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplement, or, if required by such Rule 430A or 430B, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and the Operating Partnership will pay the registration fees for each offering of securities within the time period required by Rule 456(b)(1)(i) under the 1933 Act prior to the Closing Time. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than the date of execution of the Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(d) The Company and the Operating Partnership will notify the Representatives immediately, and confirm such notice in writing, of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 Act, (iii) the receipt of any comments from the Commission regarding the Registration Statement or the documents incorporated therein by reference, (iv) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or any Time of Sale Prospectus or for additional information, (v) the receipt by the Company or the Operating Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act, and (vi) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; and the Company and the Operating Partnership will make every reasonable effort to prevent the issuance of any such stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(e) The Company and the Operating Partnership will deliver to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and the Operating Partnership and will not use or refer to any proposed free writing prospectus that is reasonably objected to by the Underwriters.
(f) The Company and the Operating Partnership will not take any action that would result in an Underwriter, the Company or the Operating Partnership being required to file with the Commission pursuant to Rule 433(d) under the 1933 Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(g) The Company and the Operating Partnership will deliver to the Representatives as soon as possible as many signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) as the Representatives may reasonably request and will also deliver to the Representatives as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus) as the Representatives may reasonably request.
(h) If, during such period after the first date of the public offering of the Underwritten Securities as the Prospectus (or in lieu thereof the notice referred to in the Rule 173(a) under the 0000 1900 Xxx) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriters, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 1900 Xxx) is delivered to a purchaser, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it ( or in lieu thereof the notice referred to in Rule 173(a) under the 0000 1900 Xxx) is delivered to a purchaser, not misleading, and the Company and the Operating Partnership will furnish to the Underwriters a reasonable number of copies of such amendment or supplement.
(i) The Company and the Operating Partnership will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions as the Representatives may reasonably designate. In each jurisdiction in which the Underwritten Securities have been so qualified, the Company and the Operating Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities.
(j) With respect to each sale of Underwritten Securities, the Company and the Operating Partnership will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined in said Rule 158) of the Registration Statement.
(k) The Company and the Operating Partnership, if applicable, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(l) The Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect to Preferred Stock, Depository Shares and Debt Securities, will use its commercially reasonable efforts to maintain the listing of any Underwritten Securities listed on the New York Stock Exchange.
(m) With respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable.
(o) Unless otherwise provided in the applicable Terms Agreement, during a period of 90 days from the date of the applicable Terms Agreement relating to Underwritten Securities, the Company and the Operating Partnership will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; (ii) if such Terms Agreement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of options, and the issuance of shares in respect of such options, pursuant to a stock option plan; (iii) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter of the offering of the Underwritten Securities and the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date of the applicable Terms Agreement.
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable efforts to list the Common Stock on the New York Stock Exchange.
(r) The Company will use commercially reasonable efforts to continue to meet the requirements to qualify as a “real estate investment trust” under the Code.
(s) If the Registration Statement is an automatic shelf registration statement and the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, then the Company or the Operating Partnership, as applicable, will, prior to the third anniversary file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission;
Appears in 1 contract
Covenants of the Company and the Operating Partnership. Each of the The Company and the Operating Partnership each hereby covenants and agrees with the Representatives, and with each Underwriter participating in the offering of Underwritten Securities, Underwriters as follows:
(a) In respect to each offering of Underwritten Securities, the The Company or the Operating Partnership, as the case may be, will furnish to the Underwriters named in the applicable Terms Agreement as many copies of the Time of Sale Prospectus (i) prepare and the Prospectus (including any Prospectus Supplement) as the Representatives shall reasonably request.
(b) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, timely file with the Commission and furnish, at their own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed with the Commission pursuant to under Rule 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 430B of the 1933 Act Regulations, then immediately following the execution of the Terms Agreement, the Company Rules and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, and Rule 424(b) of the 1933 Act Regulations, Regulations a Prospectus Supplement, or, if required by such Rule 430A or 430B, a post-effective amendment to the Registration Statement (including amended Prospectuses), Supplement containing all information so omitted. The Company and the Operating Partnership will pay the registration fees for each offering of securities within previously omitted at the time period required by Rule 456(b)(1)(i) under the 1933 Act prior to the Closing Time. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than the date of execution of the Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(d) The Company and the Operating Partnership will notify the Representatives immediately, and confirm such notice in writing, of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal prior to the Commission for filing termination of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to offering of the 1933 Act, (iii) the receipt of any comments from the Commission regarding the Registration Statement or the documents incorporated therein by reference, (iv) any request Shares by the Commission for Underwriters, not file any amendment to the Registration Statement or any amendment or supplement to the Prospectus or document incorporated by reference therein of which the Underwriters shall not previously have been advised and furnished with a copy or to which the Underwriters shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations, and (iii) file on a timely basis all reports and any Time of Sale Prospectus definitive proxy or for additional information, (v) the receipt information statements required to be filed by the Company or with the Operating Partnership of any notice of objection Commission subsequent to the date of the Commission Prospectus and prior to the use termination of the offering of the Shares by the Underwriters.
(b) The Company will advise the Underwriters promptly (i) when the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2shall have become effective, (ii) under of the 1933 Actreceipt of any comments from the Commission, and (viiii) of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation use of the Prospectus or of the institution of any proceedings for that purpose; and the . The Company and the Operating Partnership will make every reasonable effort use its best efforts to prevent the issuance of any such stop order andpreventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(c) The Company will cooperate with the Underwriters in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Underwriters may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any stop jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Shares.
(d) The Company will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Prospectus is issuedrequired under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to obtain the lifting thereof Underwriters at or before the earliest possible momentClosing Date, five signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Underwriters may reasonably request.
(e) The Company will comply with the Act and the Operating Partnership will deliver to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf ofRules and Regulations, used by, or referred to by the Company and the Operating Partnership Securities and will not use or refer to any proposed free writing prospectus that is reasonably objected to by Exchange Act of 1934 (the Underwriters.
(f"Exchange Act") The Company and the Operating Partnership will not take any action that would result in an Underwriter, the Company or the Operating Partnership being required to file with rules and regulations of the Commission pursuant thereunder, so as to Rule 433(d) under permit the 1933 Act a free writing prospectus prepared by or on behalf completion of the Underwriter that distribution of the Underwriter otherwise would not have been required to file thereunder.
(g) The Company shares as contemplated by this Agreement and the Operating Partnership will deliver to Prospectus. If during the Representatives as soon as possible as many signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) as the Representatives may reasonably request and will also deliver to the Representatives as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus) as the Representatives may reasonably request.
(h) If, during such period after the first date of the public offering of the Underwritten Securities as the Prospectus (or in lieu thereof the notice referred to in the Rule 173(a) under the 0000 Xxx) which a prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, dealer any event shall occur as a result of which it is necessarywhich, in the judgment of the Company or in the reasonable opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it ( or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) Prospectus is delivered to a purchaser, not misleading, and or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law.
(f) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations.
(g) The Company will, for a period of five years from the Closing Date, deliver to the Underwriters copies of annual reports and copies of all other documents, reports and information furnished by the Company to its securityholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Exchange Act. The Company will, upon request, deliver to the Underwriters similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.
(h) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of BT Alex. Brown Incorporated, except that the Company may, without such consent, (x) grant options and issue shares upon the exercise of options issued pursuant to the Company's employee benefit plans, (ii) issue Shares or Units in acquisition transactions, (iii) issue shares in exchange for Common Units and Exchangeable Preferred Units of the Operating Partnership will furnish to (as defined in the Underwriters a reasonable number Prospectus) or upon conversion of copies the FS Note or exchange of such amendment the Exchangeable Debentures, or supplement(iv) issue shares in accordance with any dividend reinvestment plan instituted by the Company or as consideration for future acquisitions.
(i) The Company and the Operating Partnership will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions as the Representatives may reasonably designate. In each jurisdiction in which the Underwritten Securities have been so qualified, the Company and the Operating Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities.
(j) With respect to each sale of Underwritten Securities, the Company and the Operating Partnership will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined in said Rule 158) of the Registration Statement.
(k) The Company and the Operating Partnership, if applicable, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(l) The Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect to Preferred Stock, Depository Shares and Debt Securities, will use its commercially reasonable best efforts to maintain list, subject to notice of issuance, the listing of any Underwritten Securities listed Shares on the New York Stock Exchange.
(m) With respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trustee.
(nj) The Company and shall apply the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide their respective credit ratings net proceeds from the sale of any Underwritten Securities, if applicable.
(o) Unless otherwise provided the Shares as set forth under "Use of Proceeds" in the applicable Terms Agreement, during a period of 90 days from the date of the applicable Terms Agreement relating to Underwritten Securities, the Company and the Operating Partnership will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; (ii) if such Terms Agreement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of options, and the issuance of shares in respect of such options, pursuant to a stock option plan; (iii) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter of the offering of the Underwritten Securities and the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date of the applicable Terms AgreementProspectus.
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable efforts to list the Common Stock on the New York Stock Exchange.
(r) The Company will use commercially reasonable efforts to continue to meet the requirements to qualify as a “real estate investment trust” under the Code.
(s) If the Registration Statement is an automatic shelf registration statement and the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, then the Company or the Operating Partnership, as applicable, will, prior to the third anniversary file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission;
Appears in 1 contract
Samples: Underwriting Agreement (First Washington Realty Trust Inc)
Covenants of the Company and the Operating Partnership. Each of the The Company covenant and the Operating Partnership covenants agree with the Representatives, and with each Underwriter participating in the offering of Underwritten Securities, as followsUnderwriters that:
(a) In respect to each offering The Registration Statement and any amendments thereto have been declared effective, and if Rule 430A is used or the filing of Underwritten Securitiesthe Prospectus is otherwise required under Rule 424(b) or Rule 434, the Company or the Operating Partnership, as the case may be, will furnish to the Underwriters named in the applicable Terms Agreement as many copies of the Time of Sale Prospectus and file the Prospectus (including any Prospectus Supplementproperly completed if Rule 430A has been used) as the Representatives shall reasonably request.
(b) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, file with the Commission and furnish, at their own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed with the Commission pursuant to Rule 424(b) within the prescribed time period and will provide evidence satisfactory to Bear Xxxxxxx of such timely filing. If the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Company elects to rely on Rule 430A or Rule 430B of the 1933 Act Regulations, then immediately following the execution of the Terms Agreement434, the Company and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplement, or, if required by such Rule 430A or 430B, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and the Operating Partnership will pay the registration fees for each offering of securities within the time period required by Rule 456(b)(1)(i) under the 1933 Act prior to the Closing Time. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a term sheet that complies with the requirements of Rule 462(b) Registration Statement not later than the date of execution of the Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations434.
(d) The Company and the Operating Partnership will notify the Representatives immediately, and confirm such notice in writing, of (i) the effectiveness of any amendment to when the Registration StatementStatement and any amendments thereto become effective, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 Act, (iii) the receipt of any comments from the Commission regarding the Registration Statement or the documents incorporated therein by reference, (iv) 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's intention to file or prepare any supplement, revision or amendment to the Registration Statement or the Prospectus, (iv) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Prospectus Registration Statement or any Time of Sale Prospectus or for additional informationthe Prospectus, including but not limited to Rule 462(b) under the Securities Act, (v) the receipt by the Company or the Operating Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act, and (vi) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the initiation initiation, or the threatening, of any proceedings therefor, it being understood that the Company shall make every effort to avoid the issuance of any such stop order, (vi) of the receipt of any comments from the Commission, and (vii) 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; and . If the Commission shall propose or enter a stop order at any time, the Company and the Operating Partnership will make every reasonable effort to prevent the issuance of any such stop order and, if any stop order is issued, to obtain the lifting thereof of such order as soon as possible. Prior to 10:00 A.M., New York time, on the business day next succeeding the date of this Agreement and from time to time thereafter during the period when the Prospectus is required to be delivered under the Securities Act, the Exchange Act or the Rules and Regulations in connection with the offer and sale of the Shares, the Company will not file any amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b) or Rule 434) that differs from the prospectus on file at the earliest possible momenttime of the effectiveness of the Registration Statement to which Bear Xxxxxxx shall object in writing after being timely furnished in advance a copy thereof. The Company will provide Bear Xxxxxxx with copies of all such amendments, filings and other documents a sufficient time prior to any filing or other publication thereof to permit Bear Xxxxxxx a reasonable opportunity to review and comment thereon.
(eb) The Company and the Operating Partnership will deliver to shall comply with the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company Securities Act and the Operating Partnership and will not use or refer Exchange Act to any proposed free writing prospectus that is reasonably objected to by the Underwriters.
(f) The Company and the Operating Partnership will not take any action that would result in an Underwriter, the Company or the Operating Partnership being required to file with the Commission pursuant to Rule 433(d) under the 1933 Act a free writing prospectus prepared by or on behalf permit completion of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(g) The Company and the Operating Partnership will deliver to the Representatives distribution as soon as possible as many signed copies of contemplated in this Agreement, the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) as the Representatives may reasonably request and will also deliver Prospectus. If at any time when a prospectus relating to the Representatives as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus) as the Representatives may reasonably request.
(h) If, during such period after the first date of the public offering of the Underwritten Securities as the Prospectus (or in lieu thereof the notice referred to in the Rule 173(a) under the 0000 Xxx) Shares is required by law to be delivered under the Securities Act or the Exchange Act in connection with the sales by an Underwriter or dealerof Shares, any event shall occur have occurred as a result of which it is necessarythe Prospectus as then amended or supplemented would, in the reasonable opinion of counsel for the Underwriters, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light judgment of the circumstances existing at Underwriters or the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaserCompany, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus will not include an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing at the time it ( or in lieu thereof of delivery to the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, not misleading, or if to comply with the Securities Act, the Exchange Act or the Rules and Regulations it shall be necessary at any time to amend or supplement the Prospectus or Registration Statement, or to file any document incorporated by reference in the Registration Statement or the Prospectus or in any amendment thereof or supplement thereto, the Company will notify you promptly and prepare and file with the Operating Partnership will furnish Commission, subject to the second paragraph of Section 5(a) hereof, an appropriate amendment or supplement (in form and substance satisfactory to Bear Xxxxxxx) which will correct such statement or omission or which will effect such compliance and will use its best efforts to have any amendment to the Registration Statement declared effective as soon as possible.
(c) Upon your request, the Company will promptly deliver to each of you and Underwriters' Counsel a signed copy of the Registration Statement, as initially filed and all amendments thereto, including all consents and exhibits filed therewith, and will maintain in the Company's files manually signed copies of such documents for at least five years after the date of filing. The Company will promptly deliver to each of the Underwriters a reasonable such number of copies of any Preliminary Prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, and all documents incorporated by reference in the Registration Statement and Prospectus or any amendment thereof or supplementsupplement thereto, as you may reasonably request. Prior to 10:00 A.M., New York time, on the business day next succeeding the date of this Agreement and from time to time thereafter during the period when the Prospectus is required to be delivered under the Securities Act, the Exchange Act or the Rules and Regulations, the Company will furnish the Underwriters with copies of the Prospectus in New York City in such quantities as you may reasonably request.
(id) The Company consents to the use and delivery of the Operating Partnership Preliminary Prospectus by the Underwriters in accordance with Rule 430 and Section 5(b) of the Securities Act.
(e) The Company will endeavoruse its best efforts, in cooperation with Bear Xxxxxxx, at or prior to the Underwriterstime of effectiveness of the Registration Statement, to qualify the Underwritten Securities Shares for offering and sale under the applicable securities laws and real estate syndication laws relating to the offering or sale of the Shares of such states jurisdictions, domestic or foreign, as Bear Xxxxxxx may designate and other jurisdictions as the Representatives may reasonably designate. In each jurisdiction in which the Underwritten Securities have been so qualified, the Company and the Operating Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue maintain such qualification in effect for so long as may be 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 the Underwritten Securitiesprocess.
(jf) With respect to each sale of Underwritten Securities, the The Company and the Operating Partnership will make generally available to its security holders and to the Underwriters as soon as practicable, but in any event not later than 90 days twelve months after the close effective date of the period covered therebyRegistration Statement (as defined in Rule 158(c) under the Securities Act), an earnings statement of the Company and the Subsidiaries (in form which need not be audited) complying with the provisions of Rule 158 Section 11(a) of the 1933 Securities Act Regulations) covering a twelve-month period beginning not later than and the first day Rules and Regulations (including, at the option of the Company’s fiscal quarter next following the “effective date” (as defined in said , Rule 158).
(g) During the period of five years from the effective date of the Registration Statement, the Company will furnish to you copies of all reports or other communications (financial or other) furnished to security holders or from time to time published or publicly disseminated by the Company, and will deliver to you (i) as soon as they are available, copies of any reports, financial statements and proxy or information statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed; and (ii) such additional information concerning the business and financial condition of the Company as you may from time to time reasonably request (such financial information to be on a consolidated basis to the extent the accounts of the Company and the Subsidiaries are consolidated in reports furnished to its security holders generally or to the Commission).
(kh) The Company will apply the net proceeds from the sale of the Shares as set forth under the caption "Use of Proceeds" in the Prospectus.
(i) The Company will use its best efforts to list the Shares, subject to notice of issuance, on the New York Stock Exchange (the "Exchange") and maintain the Operating Partnership, if applicablelisting of the Shares on the Exchange.
(j) The Company, during the period when the Prospectus is required to be delivered under the 1933 Securities Act or the 1934 Exchange Act, will file all documents required to be filed with the Commission pursuant to Sections 13the Securities Act, 14 or 15 of the 1934 Exchange Act and the Rules and Regulations within the time periods required thereby.
(k) The Company and the Operating Partnership will use their best efforts to do and perform all things required to be done or performed under this Agreement by the 1934 Act Company and the 1934 Act RegulationsOperating Partnership prior to the Closing Date as the case may be, and to satisfy all conditions precedent to the delivery of the Shares.
(l) The Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect to Preferred Stock, Depository Shares and Debt Securities, will use its commercially reasonable efforts to maintain the listing of any Underwritten Securities listed on the New York Stock Exchange.
(m) With respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable.
(o) Unless otherwise provided in the applicable Terms Agreement, during a period of 90 days from the date of the applicable Terms Agreement relating to Underwritten Securities, the Company and the Operating Partnership will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; (ii) if such Terms Agreement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of options, and the issuance of shares in respect of such options, pursuant to a stock option plan; (iii) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter of the offering of the Underwritten Securities and the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date of the applicable Terms Agreement.
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable efforts to list the Common Stock on the New York Stock Exchange.
(r) The Company will use commercially reasonable best efforts to continue to meet the requirements to qualify as a “"real estate investment trust” " under the CodeCode for each of its taxable years for so long as the Board of Trust Managers deems it in the best interests of the Company's shareholders to remain so qualified.
(sm) If Except for the Registration Statement is an automatic shelf registration statement and authorization of actions permitted to be taken by the third anniversary Underwriters as contemplated herein or in the Prospectus, neither the Company nor the Operating Partnership will (a) take, directly or indirectly, any action designed to cause or to result in, or that might reasonably be expected to constitute, the unlawful stabilization or manipulation of the initial effective date price of any security of the Registration Statement occurs before all Company to facilitate the sale or resale of the Securities have been sold by Shares, and (b) until the UnderwritersClosing Time, then (i) sell, bid for or purchase the Company Shares or pay any person any compensation for soliciting purchases of the Operating Partnership, as applicable, will, prior Shares or (ii) pay or agree to the third anniversary file a new shelf registration statement and take pay to any person any compensation for soliciting another to purchase any other action necessary to permit the public offering securities of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission;Company.
Appears in 1 contract
Samples: Underwriting Agreement (Crescent Real Estate Equities Co)
Covenants of the Company and the Operating Partnership. Each of the Company and the Operating Partnership severally covenants and agrees with the Representatives, and with each Underwriter participating in the offering of Underwritten Securities, as followsseveral Underwriters that:
(a) In respect The Company will (A) use its best efforts to each prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representative containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, (B) use its best efforts to cause the Registration Statement to remain in effect as to the Shares for so long as the Representative may deem necessary in order to complete the distribution of the Shares, (C) not file any amendment to the Registration Statement or supplement to the Prospectus or document incorporated by reference therein of which the Representative shall not previously have been advised and furnished with a copy or to which the Representative shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (D) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of Underwritten Securities, the Company or Shares by the Operating Partnership, as the case may be, will furnish to the Underwriters named in the applicable Terms Agreement as many copies of the Time of Sale Prospectus and the Prospectus (including any Prospectus Supplement) as the Representatives shall reasonably requestUnderwriters.
(b) If The Company will advise the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time Representative promptly (A) when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, file with the Commission and furnish, at their own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 430B of the 1933 Act Regulations, then immediately following the execution of the Terms Agreement, the Company and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplement, or, if required by such Rule 430A or 430B, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and the Operating Partnership will pay the registration fees for each offering of securities within the time period required by Rule 456(b)(1)(i) under the 1933 Act prior to the Closing Time. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than the date of execution of the Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(d) The Company and the Operating Partnership will notify the Representatives immediately, and confirm such notice in writing, of (i) the effectiveness of any amendment to the Registration Statementhave become effective, (iiB) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 Act, (iii) the receipt of any comments from the Commission, (C) of any request of the Commission regarding for amendment of the Registration Statement or the documents incorporated therein by reference, (iv) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for any Time of Sale Prospectus or for additional information, (v) the receipt by the Company or the Operating Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act, and (viD) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation use of the Prospectus or of the institution of any proceedings for that purpose; and the . The Company and the Operating Partnership will make every reasonable effort use its best efforts to prevent the issuance of any such stop order andpreventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(c) The Company will cooperate with the Representative in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representative may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign trust or to file a general consent to service of process in any stop jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports and other documents as are or may be required to continue such qualifications in effect for so long a period as the Representative may reasonably request for distribution of the Shares.
(d) The Company will deliver to, or upon the order of, the Representative, from time to time, as many copies of any Preliminary Prospectus as the Representative may reasonably request. The Company will deliver to, or upon the order of, the Representative during the period when delivery of a Prospectus is issuedrequired under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representative may reasonably request. The Company will deliver to obtain the lifting thereof Representative at or before the earliest possible momentClosing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representative such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the Representative may reasonably request.
(e) The Company will comply with the Act and the Operating Partnership will deliver to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf ofRules and Regulations, used by, or referred to by the Company and the Operating Partnership and will not use or refer to any proposed free writing prospectus that is reasonably objected to by the Underwriters.
(f) The Company Exchange Act, and the Operating Partnership will not take any action that would result in an Underwriter, the Company or the Operating Partnership being required to file with rules and regulations of the Commission pursuant thereunder, so as to Rule 433(d) under permit the 1933 Act a free writing prospectus prepared by or on behalf completion of the Underwriter that distribution of the Underwriter otherwise would not have been required to file thereunder.
(g) The Company Shares as contemplated in this Agreement and the Operating Partnership will deliver to Prospectus. If during the Representatives as soon as possible as many signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) as the Representatives may reasonably request and will also deliver to the Representatives as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus) as the Representatives may reasonably request.
(h) If, during such period after the first date of the public offering of the Underwritten Securities as the Prospectus (or in lieu thereof the notice referred to in the Rule 173(a) under the 0000 Xxx) which a prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur as a result of which it is necessarywhich, in the judgment of the Company or in the reasonable opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it ( or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) Prospectus is delivered to a purchaser, not misleading, and or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (i) prepare and file with the Operating Partnership will furnish Commission an appropriate amendment to the Underwriters a reasonable number Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of copies of such amendment the circumstances when it is so delivered, be misleading, or supplementso that the Prospectus will comply with the law.
(if) The Company and the Operating Partnership will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions as the Representatives may reasonably designate. In each jurisdiction in which the Underwritten Securities have been so qualified, the Company and the Operating Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities.
(j) With respect to each sale of Underwritten Securities, the Company and the Operating Partnership will make generally available to its security holders holders, as soon as practicableit is practicable to do so, but in any event not later than 90 days 15 months after the close effective date of the period covered therebyRegistration Statement, an earnings earning statement (which need not be audited) in form complying with reasonable detail, covering a period of at least 12 consecutive months beginning after the provisions effective date of the Registration Statement, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined Rules and Regulations and will advise you in said Rule 158) of the Registration Statementwriting when such statement has been so made available.
(kg) The Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any fiscal quarter subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Operating Partnership, if applicable, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act RegulationsProspectus.
(lh) The Prior to the Closing Date, the Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect to Preferred Stock, Depository Shares and Debt Securities, will use its commercially reasonable best efforts to maintain duly and validly authorize, by all necessary real estate investment trust action, the listing resolutions creating the Shares and designating the rights, preferences, restrictions, qualifications and limitations of any Underwritten Securities listed on the New York Stock ExchangeShares (the “Designating Resolutions”).
(mi) With respect to each offering No offering, sale, short sale or other disposition of Debt Securities, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf any Common Shares or Preferred Shares of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable.
(o) Unless otherwise provided in the applicable Terms Agreement, during a period of 90 days from the date of the applicable Terms Agreement relating to Underwritten Securities, the Company and the Operating Partnership will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; (ii) if such Terms Agreement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of options, and the issuance of shares in respect of such options, pursuant to a stock option plan; (iii) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common StockShares or Preferred Shares or derivative of Common Shares or Preferred Shares (or agreement for such) will be made for a period of 90 days after the date of this Agreement, in connection directly or indirectly, by the Company otherwise than hereunder or with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of McDonald Investments Inc. other than the lead managing underwriter issuance of Common Shares upon conversion of outstanding preferred shares of the offering Company or OP units or upon exercise of stock options issued by the Underwritten Securities and the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date of the applicable Terms AgreementCompany.
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable efforts to list the Common Stock on the New York Stock Exchange.
(rj) The Company will use commercially reasonable its best efforts to continue to meet the requirements to qualify as a “real estate investment trust” REIT under the Code, subject to the fiduciary duties of the Board of Trustees of the Company to manage the business of the Company in the best interest of its shareholders.
(sk) If the Registration Statement is an automatic shelf registration statement The Company has caused each officer and the third anniversary trustee of the initial effective Company to furnish to you, on or prior to the date of the Registration Statement occurs before all of the Securities have been sold by this Agreement, a letter or letters, in form and substance satisfactory to the Underwriters, then pursuant to which each such person shall agree not to offer, sell, sell short or otherwise dispose of any Common Shares or Preferred Shares of the Company or OP Units of the Operating Partnership or other capital stock of the Company or the Operating Partnership, as applicable, will, prior to the third anniversary file a new shelf registration statement and take or any other action necessary to permit securities convertible, exchangeable or exercisable for Common Shares, Preferred Shares or OP Units or derivative of Common Shares, Preferred Shares or OP Units owned by such person or request the public offering registration for the offer or sale of any of the Securities foregoing (or as to continue without interruption; references herein which such person has the right to direct the Registration Statement disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of McDonald Investments Inc. (collectively, the “Lock-up Agreements”).
(l) The Company shall include apply the new registration statement declared effective net proceeds of its sale of the Shares as set forth in the Prospectus.
(m) The Company shall not invest, or otherwise use the proceeds received by the Commission;Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act.
(n) The Company will maintain a transfer agent and, if necessary under the jurisdiction of organization of the Company, a registrar for the Preferred Shares.
(o) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(p) The Company will use its best efforts to list the Shares on the New York Stock Exchange.
Appears in 1 contract
Samples: Underwriting Agreement (Ramco Gershenson Properties Trust)
Covenants of the Company and the Operating Partnership. Each of the Company and the Operating Partnership covenants with the Representatives, and with each Underwriter participating in the offering of Underwritten Securities, as follows:
(a) In respect to each offering of Underwritten Securities, the Company or the Operating Partnership, as the case may be, will furnish to the Underwriters named in the applicable Terms Agreement as many copies of the Time of Sale Prospectus and the Prospectus (including any Prospectus Supplement) as the Representatives shall reasonably request.
(b) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, file with the Commission and furnish, at their own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 430B of the 1933 Act Regulations, then immediately following the execution of the Terms Agreement, the Company and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplement, or, if required by such Rule 430A or 430B, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and the Operating Partnership will pay jointly and severally covenant and agree with the registration fees for each offering of securities within Underwriters that:
(a) If the time period required by Rule 456(b)(1)(i) under the 1933 Act prior to the Closing Time. If requiredRegistration Statement has not yet been declared effective, the Company and will use its best efforts to cause the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than and any amendments thereto to become effective as promptly as possible, and if Rule 430A is used or the date of execution filing of the Terms Agreement. If a Prospectus is otherwise required under Rule 462(b424(b) Registration Statement is filedor Rule 434, the Company will file the Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within the prescribed time period and will provide evidence satisfactory to you of such timely filing. If the Operating Partnership shall make payment ofCompany elects to rely upon Rule 434, or arrange for payment ofand obtains the Representatives' consent thereto, the additional registration fee owing to Company agrees that it will comply with the Commission required by requirements of Rule 111 of the 1933 Act Regulations434.
(d) The Company and the Operating Partnership will notify the Representatives immediately, and confirm such notice in writing, of (i) the effectiveness of any amendment to when the Registration StatementStatement and any amendments thereto become effective, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 Act, (iii) the receipt of any comments from the Commission regarding the Registration Statement or the documents incorporated therein by reference, (iv) 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 mailing or the delivery to the Commission for filing of any amendment of or supplement to the Prospectus or any Time of Sale Prospectus or for additional information, (v) the receipt by the Company or the Operating Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2the Prospectus, (iv) under the 1933 Act, and (vi) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the initiation initiation, or the threatening, of any proceedings therefor, (v) of the receipt of any comments 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; and . If the Commission shall propose or enter a stop order at any time, the Company and the Operating Partnership will make every reasonable effort to prevent the issuance of any such stop 16 17 order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(e) of such order as soon as possible. The Company and the Operating Partnership will deliver not file any amendment to the Representatives a copy Registration Statement or any amendment of each proposed free writing or supplement to the Prospectus (including the prospectus required to be prepared by or on behalf of, used by, or referred to by the Company and the Operating Partnership and will not use or refer to any proposed free writing prospectus that is reasonably objected to by the Underwriters.
(f) The Company and the Operating Partnership will not take any action that would result in an Underwriter, the Company or the Operating Partnership being required to file with the Commission filed pursuant to Rule 433(d424(b)or Rule 434) under that differs from the 1933 Act a free writing prospectus prepared by or on behalf file at the time of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(g) The Company and the Operating Partnership will deliver to the Representatives as soon as possible as many signed copies effectiveness of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith before or incorporated by reference therein and documents incorporated by reference therein) as after the Representatives may reasonably request and will also deliver to the Representatives as many conformed copies effective date of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus) as the Representatives may to which you shall reasonably requestobject in writing after being timely furnished in advance a copy thereof.
(hb) If, during such period after If at any time when a prospectus relating to the first date of the public offering of the Underwritten Securities as the Prospectus (or in lieu thereof the notice referred to in the Rule 173(a) under the 0000 Xxx) Shares is required by law to be delivered in connection with sales by an Underwriter or dealer, under the Act any event shall occur have occurred as a result of which it is necessarythe Prospectus as then amended or supplemented would, in the reasonable opinion of counsel for the Underwriters, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light judgment of the circumstances existing at the time it (Underwriters or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus will not include an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing at the time it ( or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaserwhich they were made, not misleading, or if it shall be necessary at any time to amend or supplement the Prospectus or Registration Statement to comply with the Act or the Regulations, the Company will notify you promptly and prepare and file with the Commission an appropriate amendment or supplement (in form and substance satisfactory to you) which will correct such statement or omission and will use its best efforts to have any amendment to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you three signed copies of the Registration Statement, including exhibits and all amendments thereto, and the Company and the Operating Partnership will furnish promptly deliver to each of the Underwriters a reasonable such number of copies of any preliminary prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such amendment or supplementdocuments, if any, as you may reasonably request.
(id) The Company and the Operating Partnership will endeavorendeavor in good faith, in cooperation with you, at or prior to the Underwriterstime of effectiveness of the Registration Statement, to qualify the Underwritten Securities Shares for offering and sale under the applicable securities laws and real estate syndication laws relating to the offering or sale of the Shares of such states and other jurisdictions as the Representatives you may reasonably designate. In each jurisdiction in which the Underwritten Securities have been so qualified, the Company designate and the Operating Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue maintain such qualification in effect for so long as may be required for the distribution of the Underwritten Securities.
(j) With respect to each sale of Underwritten Securities, the Company and the Operating Partnership will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined in said Rule 158) of the Registration Statement.
(k) The Company and the Operating Partnership, if applicable, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(l) The Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect to Preferred Stock, Depository Shares and Debt Securities, will use its commercially reasonable efforts to maintain the listing of any Underwritten Securities listed on the New York Stock Exchange.
(m) With respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable.
(o) Unless otherwise provided in the applicable Terms Agreement, during a period of 90 days from the date of the applicable Terms Agreement relating to Underwritten Securities, the Company and the Operating Partnership will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; (ii) if such Terms Agreement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of options, and the issuance of shares in respect of such options, pursuant to a stock option plan; (iii) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter of the offering of the Underwritten Securities and the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date of the applicable Terms Agreement.
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable efforts to list the Common Stock on the New York Stock Exchange.
(r) The Company will use commercially reasonable efforts to continue to meet the requirements to qualify as a “real estate investment trust” under the Code.
(s) If the Registration Statement is an automatic shelf registration statement and the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, then the Company or the Operating Partnership, as applicable, will, prior to the third anniversary file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission;the
Appears in 1 contract
Samples: Underwriting Agreement (Glenborough Realty Trust Inc)
Covenants of the Company and the Operating Partnership. Each of the Company and the Operating Partnership covenants with the Representatives, and with each Underwriter participating in the offering of Underwritten Securities, as follows:
(a) In respect to each offering of Underwritten Securities, the Company or the Operating Partnership, as the case may be, will furnish to the Underwriters named in the applicable Terms Agreement as many copies of the Time of Sale Prospectus and the Prospectus (including any Prospectus Supplement) as the Representatives shall reasonably request.
(b) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, file with the Commission and furnish, at their own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 430B of the 1933 Act Regulations, then immediately following the execution of the Terms Agreement, the Company and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplement, or, if required by such Rule 430A or 430B, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and the Operating Partnership will pay hereby jointly and severally covenant and agree with the registration fees for each offering of securities within Dealer Manager that:
3.1 The Company will: (a) use commercially reasonable efforts to cause the time period required by Rule 456(b)(1)(i) under the 1933 Act prior to the Closing Time. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than and any subsequent amendments thereto to become effective as promptly as possible; (b) promptly advise the date of execution of the Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(d) The Company and the Operating Partnership will notify the Representatives immediately, and confirm such notice in writing, of Dealer Manager (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 Act, (iii) the receipt of any comments from of, or requests for additional or supplemental information from, the Commission regarding the Registration Statement or the documents incorporated therein by referenceCommission, (ivii) of the time and date of any request by the Commission for filing of any post-effective amendment to the Registration Statement or any amendment or supplement to the Prospectus or any Time of Sale Prospectus or for additional informationProspectus, and (viii) the receipt by the Company or the Operating Partnership of any notice of objection of the Commission to the use of the Registration Statement or time and date that any post-effective amendment thereto pursuant to Rule 401(g)(2the Registration Statement becomes effective; (c) under timely file every amendment or supplement to the 1933 Act, and (vi) Registration Statement or the issuance Prospectus that may be required by the Commission of or under the Securities Act; and (d) if at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement or Statement, it will promptly notify the initiation of any proceedings for that purpose; and Dealer Manager and, to the extent the Company and determines such action is in the Operating Partnership will make every best interest of the Company, use its commercially reasonable effort to prevent the issuance of any such stop order and, if any stop order is issued, efforts to obtain the lifting thereof of such order at the earliest possible momenttime.
(e) The 3.2 In addition to and apart from the Prospectus, the Company and intends to use printed sales literature or other materials in connection with the Operating Partnership will deliver to the Representatives a copy of each proposed free writing prospectus to be Follow-On Offering prepared by or on behalf of, used by, or referred to by the Company and or Paladin Realty Advisors, LLC, a Delaware limited liability company that serves as the Operating Partnership and will not use Company’s advisor pursuant to the terms of an advisory agreement (the “Advisor”), which materials are generally described in the Prospectus. Such printed sales literature or refer to any proposed free writing prospectus that is reasonably objected to other materials prepared by the UnderwritersCompany and/or the Advisor, provided that the use of said sales literature and other materials has been approved for use by the Company in writing and all appropriate regulatory agencies, are referred to hereinafter as the “Authorized Sales Materials.
(f) The ” In the event that the Company and uses printed materials in connection with the Operating Partnership will not take any action that would result in an Underwriter, Follow-On Offering prepared by the Company or the Operating Partnership being required to file Advisor intended for “broker-dealer use only,” Dealer Manager shall use such “broker-dealer use only” materials in accordance with the Commission pursuant to Rule 433(d) under the 1933 Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunderSection 5.3 below.
(g) 3.3 The Company and the Operating Partnership will deliver will, at no expense to the Representatives as soon as possible as many signed Dealer Manager, furnish the Dealer Manager with such number of printed copies of the Registration Statement as originally filed Statement, including all amendments and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) thereto, as the Representatives Dealer Manager may reasonably request. The Company will similarly furnish to the Dealer Manager and others designated by the Dealer Manager as many copies as the Dealer Manager may reasonably request in connection with the Follow-On Offering of the Offered Shares of: (a) the Prospectus in preliminary and final form and every form of supplemental or amended prospectus; and (b) the Authorized Sales Materials.
3.4 The Company will also deliver use its commercially reasonable efforts to qualify the Offered Shares for offering and sale under, or to establish the exemption of the offering and sale of the Offered Shares from qualification or registration under, the applicable state securities or “blue sky” laws of each jurisdiction designated in Exhibit B hereto (the “Qualified Jurisdictions”) and to maintain such qualifications or exemptions in effect throughout the Follow-On Offering. In connection therewith, the Company will prepare and file all such post-sales filings or reports as may be required by the securities regulatory authorities in the Qualified Jurisdictions in which the Offered Shares have been sold, provided that the Dealer Manager shall have provided the Company with any information required for such filings or reports that is in the Dealer Manager’s possession. The Company will notify the Dealer Manager promptly following each date of: (a) the effectiveness of qualification or exemption of Offered Shares in any additional jurisdiction in which the offering and sale of Offered Shares has been authorized by appropriate state regulatory authorities; and (b) a change in the status of the qualification or exemption of the Offered Shares in any jurisdiction in any respect. The Company will file and obtain clearance of the Authorized Sales Material to the Representatives as many conformed copies extent required by applicable state securities laws. The Company will furnish to the Dealer Manager a copy of such papers filed by the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus) as the Representatives may reasonably requestCompany in connection with any such qualification.
(h) If, during such period after the first date of the public offering of the Underwritten Securities as the 3.5 If at any time when a Prospectus (or in lieu thereof the notice referred to in the Rule 173(a) under the 0000 Xxx) is required by law to be delivered in connection with sales by an Underwriter or dealer, under the Securities Act any event shall occur occurs as a result of which it is necessarywhich, in the reasonable opinion of counsel for the Underwriters, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so amended or supplementedCompany, the Prospectus will not would include an untrue statement of a material fact or omit omits to state a any material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it ( or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaserwhich they are made, not misleading, the Company will promptly notify the Dealer Manager thereof (unless the information shall have been received from the Dealer Manager) and the Company Dealer Manager and the Operating Partnership will furnish to Participating Dealers shall suspend the Underwriters a reasonable number of copies of such amendment or supplement.
(i) The Company and the Operating Partnership will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities for offering and sale under of the applicable securities laws Offered Shares in accordance with Section 5.3 hereof until such time as the Company, in its sole discretion (a) instructs the Dealer Manager to resume the offering and sale of the Offered Shares and (b) has prepared any required supplemental or amended prospectus as shall be necessary to correct such statement or omission and to comply with the requirements of Section 10 of the Securities Act.
3.6 The Company intends to satisfy the requirements of the Code for qualification of the Company as a real estate syndication laws of such states and other jurisdictions as the Representatives may reasonably designateinvestment trust. In each jurisdiction in which the Underwritten Securities have been so qualified, the Company and the Operating Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities.
(j) With respect to each sale of Underwritten Securities, the Company and the Operating Partnership will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined in said Rule 158) of the Registration Statement.
(k) The Company and the Operating Partnership, if applicable, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(l) The Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect elect to Preferred Stock, Depository Shares and Debt Securities, will use its commercially reasonable efforts to maintain the listing of any Underwritten Securities listed on the New York Stock Exchange.
(m) With respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture be treated as a real estate investment trust under the 1939 Act Code at such time as it so qualifies and will endeavor to have a Statement of Eligibility submitted on behalf direct the investment of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable.
(o) Unless otherwise provided in the applicable Terms Agreement, during a period of 90 days from the date of the applicable Terms Agreement relating to Underwritten Securities, the Company and the Operating Partnership will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; (ii) if such Terms Agreement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of options, and the issuance of shares in respect of such options, pursuant to a stock option plan; (iii) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter proceeds of the offering of the Underwritten Securities Offered Shares in such a manner, and will exercise reasonable diligence to operate the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date business of the applicable Terms AgreementCompany, so as to comply with such requirements.
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable efforts to list the Common Stock on the New York Stock Exchange.
(r) 3.7 The Company will use commercially reasonable efforts to continue to meet apply the requirements to qualify proceeds from the sale of the Offered Shares as a “real estate investment trust” under stated in the CodeProspectus.
3.8 The Company will engage and maintain, at its expense, a registrar and transfer agent for the Offered Shares.
3.9 The parties hereto acknowledge and agree that the Advisor may, from time to time, employ and compensate persons to assist in the marketing of the Offered Shares (sthe “Related Persons”); provided, however, that: (a) If the Registration Statement is an automatic shelf registration statement employment of such Related Persons shall be approved in advance by the Dealer Manager, in its sole discretion; (b) the employment of each such Related Persons by the Advisor shall be conditioned upon the existence of a written associated person agreement between such Related Person and the third anniversary Dealer Manager; and (c) the Dealer Manager shall periodically reimburse the Advisor for the amount of the initial effective date of the Registration Statement occurs before all of the Securities have been sold compensation and benefits paid by the Underwriters, then the Company or the Operating Partnership, as applicable, will, prior Advisor to the third anniversary file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission;such Related Persons.
Appears in 1 contract
Samples: Dealer Manager Agreement (Paladin Realty Income Properties Inc)
Covenants of the Company and the Operating Partnership. Each ------------------------------------------------------- of the Company and the Operating Partnership covenants with the Representativesyou, and with each Underwriter participating in the offering of Underwritten Securities, as follows:
(a) In respect to each offering Immediately following the execution of Underwritten Securitiesthe applicable Terms Agreement, the Company or will prepare a Prospectus Supplement setting forth the Operating Partnershipnumber of Underwritten Securities covered thereby and their terms not otherwise specified in the Prospectus pursuant to which the Underwritten Securities are being issued, as the case may be, will furnish to names of the Underwriters named participating in the offering and the number of Underwritten Securities which each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, the price at which the Underwritten Securities are to be purchased by the Underwriters from the Company, the initial public offering price, if any, the selling concession and reallowance, if any, any delayed delivery arrangements, and such other information as you and the Company deem appropriate in connection with the offering of the Underwritten Securities; and the Company will, by the close of business in New York on the business day immediately succeeding the date of the applicable Terms Agreement as many Agreement, transmit copies of the Time of Sale Prospectus and the Prospectus (including any Prospectus Supplement) as the Representatives shall reasonably request.
(b) If the Time of Sale Prospectus is being used Supplement to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, file with the Commission and furnish, at their own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed with the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations, any information Regulations and will furnish to the Underwriters named therein as many copies of the Prospectus (including such Prospectus Supplement) as you shall have been omitted therefrom in reliance upon reasonably request. If the Company elects to rely on Rule 430A or Rule 430B of 434 under the 1933 Act Regulations, then immediately following the execution Company will prepare an abbreviated term sheet that complies with the requirements of Rule 434 under the 1933 Act Regulations and will provide the Underwriters with copies of the Terms Agreementform of Rule 434 Prospectus, in such number as the Company and the Operating Partnership will prepareUnderwriters may reasonably request, and file or transmit for filing with the Commission the form of Prospectus complying with Rule 434(c)(2) of the 1933 Act Regulations in accordance with such Rule 430A, 430B, and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplement, or, if required Regulations by such Rule 430A or 430B, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and close of business in New York on the Operating Partnership will pay the registration fees for each offering of securities within the time period required by Rule 456(b)(1)(i) under the 1933 Act prior to the Closing Time. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than business day immediately succeeding the date of execution of the applicable Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(db) The Company and the Operating Partnership will notify the Representatives you immediately, and confirm such notice in writing, of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus or any document to be filed pursuant to the 1933 1934 Act, (iii) the receipt of any comments from the Commission regarding the Registration Statement or the documents incorporated therein by referenceCommission, (iv) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or any Time of Sale Prospectus or for additional information, and (v) the receipt by the Company or the Operating Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act, and (vi) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; and the . The Company and the Operating Partnership will make every reasonable effort to prevent the issuance of any such stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(ec) The Company and At any time when the Operating Partnership will deliver to the Representatives a copy of each proposed free writing prospectus Prospectus is required to be prepared by or on behalf of, used by, or referred to by the Company and the Operating Partnership and will not use or refer to any proposed free writing prospectus that is reasonably objected to by the Underwriters.
(f) The Company and the Operating Partnership will not take any action that would result in an Underwriter, the Company or the Operating Partnership being required to file with the Commission pursuant to Rule 433(d) delivered under the 1933 Act a free writing prospectus prepared by or on behalf the 1934 Act in connection with sales of the Underwriter that Underwritten Securities, the Underwriter Company will give you notice of its intention to file or prepare any amendment to the Registration Statement or any amendment or supplement to the Prospectus, whether pursuant to the 1933 Act, 1934 Act or otherwise would (including any revised Prospectus which the Company proposes for use by the Underwriters in connection with an offering of Underwritten Securities which differs from the Prospectus on file at the Commission at the time the Registration Statement first becomes effective, whether or not have been such revised Prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act Regulations, or any abbreviated term sheet prepared in reliance on Rule 434 of the 1933 Act Regulations), and will furnish you with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or preparation, as the case may be, and will not file thereunderor prepare any such amendment or supplement or other documents in a form to which you or counsel for the Underwriters shall reasonably object.
(gd) The Company and the Operating Partnership will deliver to the Representatives as soon as possible each Underwriter 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 such Underwriter reasonably requests.
(e) The Company will furnish to each Underwriter, from time to time during the Representatives period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request and will also deliver to for the Representatives as many conformed copies of purposes contemplated by the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into 1933 Act, the Prospectus) as 1933 Act Regulations, the Representatives may reasonably request1934 Act or the 1934 Act Regulations.
(hf) If, during such period after If at any time when the first date of Prospectus is required to be delivered under the public offering 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities as the Prospectus (or in lieu thereof the notice referred to in the Rule 173(a) under the 0000 Xxx) 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, in the reasonable opinion of counsel for the UnderwritersUnderwriters or counsel for the Company, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so amended or supplemented, that the Prospectus will not include an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein not misleading in the light of the circumstances existing at the time it ( or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, not misleadingor if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend or supplement the Registration Statement or the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, then the Company will promptly prepare and file with the Commission such amendment or supplement, whether by filing documents pursuant to the 1933 Act, the 1934 Act or otherwise, as may be necessary to correct such untrue statement or omission or to make the Registration Statement and Prospectus comply with such requirements, and the Company and the Operating Partnership will furnish to the Underwriters a reasonable number of copies of such amendment or supplement.
(ig) The Company and the Operating Partnership will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities Securities, the Warrant Securities, if any, and Common Shares issuable upon conversion of the Preferred 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 Representatives you may reasonably designate. In each jurisdiction in which the Underwritten Securities Securities, the Warrant Securities, if any, and Common Shares issuable upon conversion of the Preferred Shares have been so qualified, the Company and the Operating Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities and the Warrant Securities; provided, however, that -------- ------- the Company shall not be obligated to (A) qualify as a foreign entity in any jurisdiction where it is not so qualified, (B) file any general consent to service of process, or (C) take any action that would subject it to income taxation in any such jurisdiction.
(jh) With respect to each sale of Underwritten Securities, the Company and the Operating Partnership will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-twelve month period beginning not later than the first day of the Company’s 's fiscal quarter next following the “"effective date” " (as defined in said such Rule 158) of the Registration Statement.
(ki) The Company and will use its best efforts to meet the Operating Partnership, if applicablerequirements to qualify as a "real estate investment trust" under the Code for the taxable year in which sales of the Underwritten Securities are to occur.
(j) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 ActAct in connection with sales of the Underwritten Securities, will file all documents required to be filed with the Commission pursuant to Sections Section 13, 14 or 15 of the 1934 Act within the time periods required prescribed by the 1934 Act and the 1934 Act Regulations.
(l) The Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect to Preferred Stock, Depository Shares and Debt Securities, will use its commercially reasonable efforts to maintain the listing of any Underwritten Securities listed on the New York Stock Exchange.
(m) With respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable.
(o) Unless otherwise provided in the applicable Terms Agreement, during a period of 90 days from the date of the applicable Terms Agreement relating to Underwritten Securities, the Company and the Operating Partnership will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; (ii) if such Terms Agreement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of options, and the issuance of shares in respect of such options, pursuant to a stock option plan; (iii) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter of the offering of the Underwritten Securities and the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date of the applicable Terms Agreement.
(pk) If the Preferred Stock is Shares are convertible into Common StockShares, the Company will reserve and keep available at all times, free of preemptive rights and or other similar rights, a sufficient number of shares of Common Stock Shares for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock shares upon conversion of the Preferred StockShares, as the case may be, or upon the exercise of the Common Share Warrants.
(ql) If the Preferred Stock is convertible into Common Stockapplicable, the Company will use commercially reasonable its best efforts to list the Common Stock Shares on the New York Stock ExchangeExchange or such other national exchange on which the Company's Common Shares are then listed.
(rm) The If Preferred Shares are convertible into Common Shares, the Company will use commercially reasonable its best efforts to continue to meet list the requirements to qualify as a “real estate investment trust” under Common Shares issuable on Conversion of the CodePreferred Shares on the New York Stock Exchange or such other national exchange on which the Company's Common Shares are then listed.
(sn) If Neither the Registration Statement is an automatic shelf registration statement and Company nor the third anniversary Operating Partnership will, during a period of 90 days from the initial effective date of the Registration Statement occurs before all applicable Terms Agreement, with respect to the Underwritten Securities covered thereby, without your prior written consent, offer or sell, grant any option for the sale of, or enter into any agreement to sell, any of the Company's or the Operating Partnership's equity securities (other than the Underwritten Securities have been which are to be sold pursuant to such Terms Agreement), except for Common shares issued, or to be issued pursuant to this Agreement, pursuant to dividend reinvestment and stock purchase plans, employee and director stock option and restricted stock plans, pursuant to redemption of limited partnership interests in the Operating Partnership or as partial or full payment for properties acquired or to be acquired by the Underwriters, then the Company or the Operating Partnership, as applicable, will, prior to the third anniversary file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission;.
Appears in 1 contract
Covenants of the Company and the Operating Partnership. Each of the Company and the Operating Partnership covenants with the Representatives, and agrees with each Underwriter participating in of the offering of Underwritten Securities, as followsUnderwriters that:
(a) In respect The Company will use its best efforts to each offering of Underwritten Securities, the Company or the Operating Partnership, as the case may be, will furnish to the Underwriters named in the applicable Terms Agreement as many copies of the Time of Sale Prospectus and the Prospectus (including any Prospectus Supplement) as the Representatives shall reasonably request.
(b) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, file with the Commission and furnish, at their own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with cause the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, if not effective at the time the Prospectus Supplement was filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 430B of the 1933 Act Regulations, then immediately following the execution of the Terms this Agreement, and any amendments thereto to become effective as promptly as possible. If required, the Company will file the Prospectus or any Term Sheet that constitutes a part thereof and the Operating Partnership will prepare, and file any amendment or transmit for filing supplement thereto with the Commission in accordance with such Rule 430A, 430B, the manner and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplement, or, if required by such Rule 430A or 430B, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and the Operating Partnership will pay the registration fees for each offering of securities within the time period required by Rule 456(b)(1)(iRules 434 and 424(b) under the 1933 Act prior Act. During any time when a prospectus relating to the Closing Time. If requiredSecurities is required to be delivered under the Act, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than the date of execution of the Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(d) The Company and the Operating Partnership will notify the Representatives immediately, and confirm such notice in writing, of (i) will comply with all requirements imposed upon it by the effectiveness Act and the rules and regulations of any amendment the Commission thereunder to the Registration Statementextent necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented, and (ii) the transmittal to will not file with the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 ActProspectus, (iii) the receipt of any comments from the Commission regarding the Registration Statement Term Sheet or the documents incorporated therein by referenceamendment referred to in the second sentence of Section 2(a) hereof, (iv) any request by the Commission for amendment or supplement to such Prospectus, Term Sheet or any amendment to the Registration Statement or any amendment Rule 462(b) Registration Statement of which the Representatives previously have been advised and furnished with a copy for a reasonable period of time prior to the proposed filing and as to which filing the Representatives shall not have given their consent. The Company will prepare and file with the Commission, in accordance with the rules and regulations of the Commission, promptly upon request by the Representatives or supplement counsel for the Underwriters, any amendments to the Registration Statement or amendments or supplements to the Prospectus that may be necessary or any Time advisable in connection with the distribution of Sale Prospectus or for additional information, (v) the receipt Securities by the several Underwriters, and will use its best efforts to cause any such amendment to the Registration Statement to be declared effective by the Commission as promptly as possible. The Company or will advise the Operating Partnership of any Representatives, promptly after receiving notice of objection thereof, of the Commission to the use of time when the Registration Statement or any post-effective amendment thereto pursuant has been filed or declared effective or the Prospectus or any amendment or supplement thereto has been filed and will provide evidence satisfactory to Rule 401(g)(2the Representatives of each such filing or effectiveness.
(b) under The Company will advise the 1933 ActRepresentatives, and promptly after receiving notice or obtaining knowledge thereof, of (vii) the issuance by the Commission of any stop order suspending the effectiveness of the Original Registration Statement or any Rule 462(b) Registration Statement or any amendment thereto or any order preventing or suspending the initiation use of any proceedings Preliminary Prospectus or the Prospectus or any amendment or supplement thereto, (ii) the suspension of the qualification of the Securities for that offering or sale in any jurisdiction, (iii) the institution, threatening or contemplation of any proceeding for any such purpose; and , or (iv) any request made by the Commission for amending the Original Registration Statement or any Rule 462(b) Registration Statement, for amending or supplementing the Prospectus or for additional information. The Company and the Operating Partnership will make every reasonable effort use its best efforts to prevent the issuance of any such stop order and, if any such stop order is issued, to obtain the lifting withdrawal thereof at the earliest possible momentas promptly as possible.
(ec) The Company will arrange for the qualification of the Securities for offering and the Operating Partnership will deliver to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and the Operating Partnership and will not use or refer to any proposed free writing prospectus that is reasonably objected to by the Underwriters.
(f) The Company and the Operating Partnership will not take any action that would result in an Underwriter, the Company or the Operating Partnership being required to file with the Commission pursuant to Rule 433(d) sale under the 1933 Act a free writing prospectus prepared by securities or on behalf blue sky laws of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(g) The Company and the Operating Partnership will deliver to the Representatives as soon as possible as many signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) such jurisdictions as the Representatives may reasonably request designate and will also deliver continue such qualifications in effect for as long as may be necessary to complete the Representatives as many conformed copies distribution of the Registration Statement Securities, provided, however, that in connection therewith the Company shall not be required to qualify as originally filed and a foreign corporation or to execute a general consent to service of each amendment thereto (including documents incorporated by reference into the Prospectus) as the Representatives may reasonably requestprocess in any jurisdiction.
(hd) If, during such period after at any time prior to the first later of (i) the final date of when a prospectus relating to the public offering of the Underwritten Securities as the Prospectus (or in lieu thereof the notice referred to in the Rule 173(a) under the 0000 Xxx) is required by law to be delivered in connection with sales by an Underwriter under the Act or dealer(ii) the Option Closing Date, any event shall occur occurs as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriters, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so thatProspectus, as so then amended or supplemented, the Prospectus will not would include an any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it ( or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaserwhich they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Prospectus to comply with the Act or the rules or regulations of the Commission thereunder, the Company will promptly notify the Representatives thereof and, subject to Section 5(a) hereof, will prepare and file with the Commission, at the Company's expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance.
(e) The Company will, without charge, provide (i) to the Representatives and to counsel for the Underwriters a conformed copy of the registration statement originally filed with respect to the Securities and each amendment thereto (in each case including exhibits thereto) or any Rule 462(b) Registration Statement, certified by the Secretary or an Assistant Secretary of the Company to be true and complete copies thereof as filed with the Commission by electronic transmission, (ii) to each other Underwriter, a conformed copy of such registration statement or any Rule 462(b) Registration Statement and each amendment thereto (in each case without exhibits thereto) and (iii) so long as a prospectus relating to the Securities is required to be delivered under the Act, as many copies of each Preliminary Prospectus or the Prospectus or any amendment or supplement thereto as the Representatives may reasonably request; without limiting the application of clause (iii) of this sentence, the Company, not later than (A) 6:00 P.M., New York City time, on the date of determination of the public offering price, if such determination occurred at or prior to 10:00 A.M., New York City time, on such date or (B) 2:00 P.M., New York City time, on the business day following the date of determination of the public offering price, if such determination occurred after 10:00 A.M., New York City time, on such date, will deliver to the Underwriters, without charge, as many copies of the Prospectus and any amendment or supplement thereto as the Representatives may reasonably request for purposes of confirming orders that are expected to settle on the Firm Closing Date.
(f) The Company, as soon as practicable, will make generally available to its securityholders and to the Representatives a consolidated earnings statement of the Company and its subsidiaries that satisfies the Operating Partnership will furnish to provisions of Section 11(a) of the Underwriters a reasonable number of copies of such amendment or supplementAct and Rule 158 thereunder.
(ig) The Company will apply the net proceeds from the sale of the Securities as set forth under "Use of Proceeds" in the Prospectus.
(h) The Company and the Operating Partnership will endeavornot, in cooperation with directly or indirectly, without the prior written consent of Prudential Securities Incorporated, on behalf of the Underwriters, offer, sell, offer to qualify the Underwritten Securities for offering and sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose (or announce any offer, sale, offer of sale, contract of sale, pledge, grant of any option to purchase or other sale under the applicable securities laws and real estate syndication laws or disposition) of such states and any shares of Common Stock or other jurisdictions as the Representatives may reasonably designate. In each jurisdiction in which the Underwritten Securities have been so qualified, capital stock of the Company or Units or other partnership interests of the Operating Partnership, or any securities convertible into, or exchangeable or exercisable for, shares of Common Stock or other capital stock of the Company or Units or other partnership interests of the Operating Partnership, for a period of 180 days after the date hereof, except (i) pursuant to this Agreement, (ii) pursuant to a dividend reinvestment plan of the Company, (iii) pursuant to the Company's 1997 Stock Option and Long-Term Incentive Plan, and (iv) in connection with the acquisition by the Company or the Operating Partnership will file such statements and reports as may be required by of real property or interests in entities holding real property, provided that the laws recipient or transferee of such jurisdiction securities or interests agrees in writing to continue such qualification be subject to the lock-up contained in this Section 5(h) (without giving effect to clauses (i), (ii), (iii) and (iv)) for so long as may a period ending on the date that is 180 days after the date hereof.
(i) The Company will not, directly or indirectly, (i) take any action designed to cause or to result in, or that has constituted or which might reasonably be required for expected to constitute, the distribution stabilization or manipulation of the Underwritten Securitiesprice of any security of the Company to facilitate the sale or resale of the Securities or (ii) (A) sell, bid for, purchase, or pay anyone any compensation for soliciting purchases of, the Securities or (B) pay or agree to pay to any person any compensation for soliciting another to purchase any other securities of the Company.
(j) With respect The Company will obtain the agreements described in Section 7(f) hereof prior to each sale of Underwritten Securities, the Company and the Operating Partnership will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined in said Rule 158) of the Registration StatementFirm Closing Date.
(k) The Company and the Operating Partnership, if applicable, If at any time during the 25-day period when after the Prospectus Registration Statement becomes effective or the period prior to the Option Closing Date, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in your opinion the market price of the Common Stock has been or is required likely to be delivered under the 1933 Act materially affected (regardless of whether such rumor, publication or the 1934 Act, will file all documents required event necessitates a supplement to be filed with the Commission pursuant to Sections 13, 14 or 15 amendment of the 1934 Act within Prospectus), the time periods required by Company will, after notice from you advising the 1934 Act Company to the effect set forth above, forthwith prepare, consult with you concerning the substance of, and the 1934 Act Regulationsdisseminate a press release or other public statement, reasonably satisfactory to you, responding to or commenting on such rumor, publication or event.
(l) If the Company elects to rely on Rule 462(b), the Company shall both file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 promulgated under the Act by the earlier of (i) 10:00 P.M. Eastern time on the date of this Agreement and (ii) the time confirmations are sent or given, as specified by Rule 462(b)(2).
(m) The Company will file with cause the New York Stock Exchange all documents and notices required Securities to be duly authorized for listing by the New York Stock Exchange prior to the Firm Closing Date, subject to official notice of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect to Preferred Stock, Depository Shares and Debt Securities, will use its commercially reasonable efforts to maintain the listing of any Underwritten Securities listed on the New York Stock Exchange.
(m) With respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trusteeissuance.
(n) The Company will use its best efforts to meet the requirements to qualify, commencing with the taxable year ending December 31, 1997, as a REIT under the Code and will file with its United States federal income tax return for each taxable year commencing with the Operating Partnership will take all reasonable action necessary taxable year ending December 31, 1997, the election to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”be a REIT as described in Section 856(c)(1) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicablethe Code.
(o) Unless otherwise provided in the applicable Terms Agreement, during a period of 90 days from the date of the applicable Terms Agreement relating to Underwritten Securities, the The Company and will cause the Operating Partnership will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; (ii) if such Terms Agreement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of options, and the issuance of shares operate as a limited partnership in respect of such options, pursuant to a stock option plan; (iii) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection accordance with the acquisition requirements of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter of the offering of the Underwritten Securities and the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date of the applicable Terms AgreementDelaware law.
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable efforts to list the Common Stock on the New York Stock Exchange.
(r) The Company will use commercially reasonable efforts to continue to meet the requirements to qualify as a “real estate investment trust” under the Code.
(s) If the Registration Statement is an automatic shelf registration statement and the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, then the Company or the Operating Partnership, as applicable, will, prior to the third anniversary file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission;
Appears in 1 contract
Samples: Underwriting Agreement (Philips International Realty Corp)
Covenants of the Company and the Operating Partnership. Each of the Company and the Operating Partnership covenants with the Representatives, and with each Underwriter participating in the offering of Underwritten Securities, as followsUnderwriters:
(a) In respect to each the offering of Underwritten Securitiesthe Notes, the Company or Operating Partnership will prepare a Prospectus Supplement setting forth the aggregate principal amount of Notes covered thereby and their terms not otherwise specified in the Prospectus pursuant to which the Notes are being issued, the names of the Underwriters participating in the offering and the amount of Notes which each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the offering, the price at which the Notes are to be purchased by the Underwriters from the Operating Partnership, Partnership and such other information as the case may be, Underwriters and the Operating Partnership deem appropriate in connection with the offering of the Notes; and the Operating Partnership will promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations and will furnish to the Underwriters named in the applicable Terms Agreement therein as many copies of the Time of Sale Prospectus and the Prospectus (including any such Prospectus Supplement) as the Representatives Underwriters shall reasonably request.
(b) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, file with the Commission and furnish, at their own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 430B of the 1933 Act Regulations, then immediately following the execution of the Terms this Agreement, the Company and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, 430A and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplementcopy of an amended Prospectus, or, if required by such Rule 430A or 430B430A, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and the Operating Partnership will pay the registration fees for each offering of securities within the time period required by Rule 456(b)(1)(i) under the 1933 Act prior to the Closing Time. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than the date of execution of the Terms this Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(dc) The Company and the Operating Partnership will notify the Representatives Underwriters immediately, and confirm such notice in writing, of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 Act, (iii) the receipt of any comments from the Commission regarding the Registration Statement or the documents incorporated therein by referenceCommission, (iv) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or any Time of Sale Prospectus or for additional information, and (v) the receipt by the Company or the Operating Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act, and (vi) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; and the Company and the Operating Partnership will make every reasonable effort to prevent the issuance of any such stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(d) At any time when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Notes, the Company and the Operating Partnership will give the Underwriters notice of its intention to file or prepare any amendment to the Registration Statement or any amendment or supplement to the Prospectus, whether pursuant to the 1933 Act, 1934 Act or otherwise, will furnish the Underwriters with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing and, unless required by law, will not file or use any such amendment or supplement or other documents in a form to which the Underwriters or counsel for the Underwriters shall reasonably object.
(e) The Company and the Operating Partnership will deliver to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and the Operating Partnership and will not use or refer to any proposed free writing prospectus that is reasonably objected to by the Underwriters.
(f) The Company and the Operating Partnership will not take any action that would result in an Underwriter, the Company or the Operating Partnership being required to file with the Commission pursuant to Rule 433(d) under the 1933 Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(g) The Company and the Operating Partnership will deliver to the Representatives Underwriters as soon as possible as many signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) as the Representatives Underwriters may reasonably request and will also deliver to the Representatives Underwriters as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus) as the Representatives Underwriters may reasonably request.
(hf) IfThe Company and the Operating Partnership will furnish to each Underwriter, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such period after the first date number of the public offering copies of the Underwritten Securities as the Prospectus (as amended or in lieu thereof supplemented) as such Underwriter may reasonably request for the notice referred to in purposes contemplated by the Rule 173(a1933 Act or the 1934 Act or the respective applicable rules and regulations of the Commission thereunder.
(g) under the 0000 Xxx) is required by law to be delivered in connection with sales by an Underwriter or dealer, If any event shall occur as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriters, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it ( or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, not misleading, and the Company and the Operating Partnership will furnish to the Underwriters a reasonable number of copies of such amendment or supplement.
(ih) The Company and the Operating Partnership will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities Notes for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions as the Representatives Underwriters may reasonably designate. In each jurisdiction in which the Underwritten Securities Notes have been so qualified, the Company and the Operating Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten SecuritiesNotes.
(ji) With respect to each the sale of Underwritten SecuritiesNotes, the Company and the Operating Partnership will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined in said Rule 158) of the Registration Statement.
(j) The Operating Partnership will use the net proceeds received by it from the sale of the Notes in the manner specified in the Prospectus under “Use of Proceeds.”
(k) The Company and the Operating Partnership, if applicable, Partnership during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(l) The Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange and, unless otherwise agreed upon with In respect to Preferred Stock, Depository Shares and Debt Securities, will use its commercially reasonable efforts to maintain the listing of any Underwritten Securities listed on the New York Stock Exchange.
(m) With respect to each offering of Debt Securitiesthe Notes, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trustee.
(nm) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicableNotes.
(on) Unless otherwise provided in the applicable Terms Agreement, during During a period of 90 days from between the date of the applicable Terms this Agreement relating to Underwritten Securitiesand Closing Time, the Company and the Operating Partnership will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; (ii) if such Terms Agreement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of options, and the issuance of shares in respect of such options, pursuant to a stock option plan; (iii) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter of the offering of the Underwritten Securities and the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such debt securities until the expiration of having a 90-day period from the date of the applicable Terms Agreementterm exceeding one year.
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable efforts to list the Common Stock on the New York Stock Exchange.
(ro) The Company will use commercially reasonable its best efforts to continue to meet the requirements to qualify as a “real estate investment trust” under the Code.
(sp) If During the Registration Statement is an automatic shelf registration statement period from the Closing Time until five years after the Closing Time, the Company and the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by Operating Partnership will deliver to the Underwriters, then (i) promptly upon their becoming available, copies of all current, regular and periodic reports of the Company mailed to its stockholders or filed with any securities exchange or with the Commission or any governmental authority succeeding to any of the Commission’s functions, and (ii) such other information concerning the Company and the Operating Partnership, Partnership as applicable, will, prior to the third anniversary file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission;Underwriters may reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Duke Realty Limited Partnership/)
Covenants of the Company and the Operating Partnership. Each of the Company and the Operating Partnership covenants with the Representatives, and with each Underwriter participating in the offering of Underwritten Securities, as follows:
(a) In respect to each offering of Underwritten Securities, the Company or the Operating Partnership, as the case may be, will furnish to the Underwriters named in the applicable Terms Agreement as many copies of the Time of Sale Prospectus and the Prospectus (including any Prospectus Supplement) as the Representatives shall reasonably request.
(b) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, file with the Commission and furnish, at their own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 430B of the 1933 Act Regulations, then immediately following the execution of the Terms Agreement, the Company and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplement, or, if required by such Rule 430A or 430B, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and the Operating Partnership will pay the registration fees for each offering of securities within the time period required by Rule 456(b)(1)(i) under the 1933 Act prior to the Closing Time. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than the date of execution of the Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(d) The Company and the Operating Partnership will notify the Representatives immediately, and confirm such notice in writing, of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 Act, (iii) the receipt of any comments from the Commission regarding the Registration Statement or the documents incorporated therein by reference, (iv) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or any Time of Sale Prospectus or for additional information, (v) the receipt by the Company or the Operating Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act, and (vi) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; and the Company and the Operating Partnership will make every reasonable effort to prevent the issuance of any such stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(e) The Company and the Operating Partnership will deliver to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and the Operating Partnership and will not use or refer to any proposed free writing prospectus that is reasonably objected to by the Underwriters.
(f) The Company and the Operating Partnership will not take any action that would result in an Underwriter, the Company or the Operating Partnership being required to file with the Commission pursuant to Rule 433(d) under the 1933 Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(g) The Company and the Operating Partnership will deliver to the Representatives as soon as possible as many signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) as the Representatives may reasonably request and will also deliver to the Representatives as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus) as the Representatives may reasonably request.
(h) If, during such period after the first date of the public offering of the Underwritten Securities as the Prospectus (or in lieu thereof the notice referred to in the Rule 173(a) under the 0000 Xxx) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriters, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it ( (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, not misleading, and the Company and the Operating Partnership will furnish to the Underwriters a reasonable number of copies of such amendment or supplement.
(i) The Company and the Operating Partnership will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions as the Representatives may reasonably designate. In each jurisdiction in which the Underwritten Securities have been so qualified, the Company and the Operating Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities.
(j) With respect to each sale of Underwritten Securities, the Company and the Operating Partnership will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined in said Rule 158) of the Registration Statement.
(k) The Company and the Operating Partnership, if applicable, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(l) The Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect to Preferred Stock, Depository Shares and Debt Securities, will use its commercially reasonable efforts to maintain the listing of any Underwritten Securities listed on the New York Stock Exchange.
(m) With respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable.
(o) Unless otherwise provided in the applicable Terms Agreement, during a period of 90 days from the date of the applicable Terms Agreement relating to Underwritten Securities, the Company and the Operating Partnership will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; and (ii) if such Terms Agreement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of optionsshares of restricted stock, restricted stock units, options or other similar securities pursuant to employee or director equity plans, and the issuance of shares in respect of the conversion or exercise of any such options, pursuant to a stock option plansecurities; (iii) the issuance of shares of Common Stock pursuant to the Duke Realty 401(k) Plan; (iv) the issuance of shares pursuant to a dividend reinvestment plan, including the Company’s Direct Stock Purchase and Dividend Reinvestment Plan; (v) the issuance of shares pursuant to an employee stock purchase plan; and (ivvi) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter of the offering of the Underwritten Securities and the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date of the applicable Terms Agreement.
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable efforts to list the Common Stock on the New York Stock Exchange.
(r) The Company will use commercially reasonable efforts to continue to meet the requirements to qualify as a “real estate investment trust” under the Code.
(s) If the Registration Statement is an automatic shelf registration statement and the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, then the Company or the Operating Partnership, as applicable, will, prior to the third anniversary file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission;
Appears in 1 contract
Covenants of the Company and the Operating Partnership. Each of the Company and the Operating Partnership covenants with the Representatives, and with each Underwriter participating in the offering of Underwritten Securities, as follows:
(a) In respect to each offering of Underwritten Securities, the Company or the Operating Partnership, as the case may be, will furnish to the Underwriters named in the applicable Terms Agreement as many copies of the Time of Sale Prospectus and the Prospectus (including any Prospectus Supplement) as the Representatives shall reasonably request.
(b) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, file with the Commission and furnish, at their own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 430B of the 1933 Act Regulations, then immediately following the execution of the Terms Agreement, the Company and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplement, or, if required by such Rule 430A or 430B, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and the Operating Partnership will pay hereby jointly and severally covenant and agree with the registration fees for each offering of securities within Dealer Manager that:
3.1 The Company will: (a) use commercially reasonable efforts to cause the time period required by Rule 456(b)(1)(i) under the 1933 Act prior to the Closing Time. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than and any subsequent amendments thereto to become effective as promptly as possible; (b) promptly advise the date of execution of the Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(d) The Company and the Operating Partnership will notify the Representatives immediately, and confirm such notice in writing, of Dealer Manager (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 Act, (iii) the receipt of any comments from of, or requests for additional or supplemental information from, the Commission regarding the Registration Statement or the documents incorporated therein by referenceCommission, (ivii) of the time and date of any request by the Commission for filing of any post-effective amendment to the Registration Statement or any amendment or supplement to the Prospectus or any Time of Sale Prospectus or for additional informationProspectus, and (viii) the receipt by the Company or the Operating Partnership of any notice of objection of the Commission to the use of the Registration Statement or time and date that any post-effective amendment thereto pursuant to Rule 401(g)(2the Registration Statement becomes effective; (c) under timely file every amendment or supplement to the 1933 Act, and (vi) Registration Statement or the issuance Prospectus that may be required by the Commission of or under the Securities Act; and (d) if at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement or Statement, it will promptly notify the initiation of any proceedings for that purpose; and Dealer Manager and, to the extent the Company and determines such action is in the Operating Partnership will make every best interest of the Company, use its commercially reasonable effort to prevent the issuance of any such stop order and, if any stop order is issued, efforts to obtain the lifting thereof of such order at the earliest possible momenttime.
(e) The 3.2 In addition to and apart from the Prospectus, the Company and intends to use printed sales literature or other materials in connection with the Operating Partnership will deliver to the Representatives a copy of each proposed free writing prospectus to be Follow-On Offering prepared by or on behalf of, used by, or referred to by the Company and or Paladin Realty Advisors, LLC, a Delaware limited liability company, that serves as the Operating Partnership and will not use Company’s advisor pursuant to the terms of an advisory agreement, as amended from time to time (the “Advisor”), which materials are generally described in the Prospectus. Such printed sales literature or refer to any proposed free writing prospectus that is reasonably objected to other materials prepared by the UnderwritersCompany and/or the Advisor, provided that the use of said sales literature and other materials has been approved for use by the Company in writing and all appropriate regulatory agencies, are referred to hereinafter as the “Authorized Sales Materials.
(f) The ” In the event that the Company and uses printed materials in connection with the Operating Partnership will not take any action that would result in an Underwriter, Follow-On Offering prepared by the Company or the Operating Partnership being required to file Advisor intended for “broker-dealer use only,” Dealer Manager shall use such “broker-dealer use only” materials in accordance with the Commission pursuant to Rule 433(d) under the 1933 Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunderSection 5.3 below.
(g) 3.3 The Company and the Operating Partnership will deliver will, at no expense to the Representatives as soon as possible as many signed Dealer Manager, furnish the Dealer Manager with such number of printed copies of the Registration Statement as originally filed Statement, including all amendments and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) thereto, as the Representatives Dealer Manager may reasonably request. The Company will similarly furnish to the Dealer Manager and others designated by the Dealer Manager as many copies as the Dealer Manager may reasonably request in connection with the Follow-On Offering of the Offered Shares of: (a) the Prospectus in preliminary and final form and every form of supplemental or amended prospectus; and (b) the Authorized Sales Materials.
3.4 The Company will also deliver use its commercially reasonable efforts to qualify the Offered Shares for offering and sale under, or to establish the exemption of the offering and sale of the Offered Shares from qualification or registration under, the applicable state securities or “blue sky” laws of each jurisdiction designated in Exhibit A hereto (the “Qualified Jurisdictions”) and to maintain such qualifications or exemptions in effect throughout the Follow-On Offering. In connection therewith, the Company will prepare and file all such post-sales filings or reports as may be required by the securities regulatory authorities in the Qualified Jurisdictions in which the Offered Shares have been sold, provided that the Dealer Manager shall have provided the Company with any information required for such filings or reports that is in the Dealer Manager’s possession. The Company will notify the Dealer Manager promptly following each date of: (a) the effectiveness of qualification or exemption of Offered Shares in any additional jurisdiction in which the offering and sale of Offered Shares has been authorized by appropriate state regulatory authorities; and (b) a change in the status of the qualification or exemption of the Offered Shares in any jurisdiction in any respect. The Company will file and obtain clearance of the Authorized Sales Material to the Representatives as many conformed copies extent required by applicable state securities laws. The Company will furnish to the Dealer Manager a copy of such papers filed by the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus) as the Representatives may reasonably requestCompany in connection with any such qualification.
(h) 3.5 If, during such period after the first date of the public offering of the Underwritten Securities as the at any time when a Prospectus (or in lieu thereof the notice referred to in the Rule 173(a) under the 0000 Xxx) is required by law to be delivered in connection with sales by an Underwriter or dealerunder the Securities Act, any event shall occur occurs as a result of which it is necessarywhich, in the reasonable opinion of counsel for the Underwriters, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so amended or supplementedCompany, the Prospectus will not would include an untrue statement of a material fact or omit omits to state a any material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it ( or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaserwhich they are made, not misleading, the Company will promptly notify the Dealer Manager thereof (unless the information shall have been received from the Dealer Manager) and the Company Dealer Manager and the Operating Partnership will furnish to Participating Dealers shall suspend the Underwriters a reasonable number of copies of such amendment or supplement.
(i) The Company and the Operating Partnership will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities for offering and sale of the Offered Shares in accordance with Section 5.3 hereof until such time as the Company, in its sole discretion (a) instructs the Dealer Manager to resume the offering and sale of the Offered Shares and (b) has prepared any required supplemental or amended prospectus as shall be necessary to correct such statement or omission and to comply with the requirements of Section 10 of the Securities Act.
3.6 The Company intends to satisfy the requirements of the Code for qualification of the Company as a real estate investment trust. The Company has elected to be treated as a real estate investment trust under the applicable securities laws Code and real estate syndication laws of such states and other jurisdictions as will direct the Representatives may reasonably designate. In each jurisdiction in which the Underwritten Securities have been so qualified, the Company and the Operating Partnership 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 investment of the Underwritten Securities.
(j) With respect to each sale of Underwritten Securities, the Company and the Operating Partnership will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined in said Rule 158) of the Registration Statement.
(k) The Company and the Operating Partnership, if applicable, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(l) The Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect to Preferred Stock, Depository Shares and Debt Securities, will use its commercially reasonable efforts to maintain the listing of any Underwritten Securities listed on the New York Stock Exchange.
(m) With respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable.
(o) Unless otherwise provided in the applicable Terms Agreement, during a period of 90 days from the date of the applicable Terms Agreement relating to Underwritten Securities, the Company and the Operating Partnership will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; (ii) if such Terms Agreement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of options, and the issuance of shares in respect of such options, pursuant to a stock option plan; (iii) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter proceeds of the offering of the Underwritten Securities Offered Shares in such a manner, and will exercise reasonable diligence to operate the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date business of the applicable Terms AgreementCompany, so as to comply with such requirements.
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable efforts to list the Common Stock on the New York Stock Exchange.
(r) 3.7 The Company will use commercially reasonable efforts to continue to meet apply the requirements to qualify proceeds from the sale of the Offered Shares as a “real estate investment trust” under stated in the CodeProspectus.
(s) If 3.8 The Company will engage and maintain, at its expense, a registrar and transfer agent for the Registration Statement is an automatic shelf registration statement and the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, then the Company or the Operating Partnership, as applicable, will, prior to the third anniversary file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission;Offered Shares.
Appears in 1 contract
Samples: Dealer Manager Agreement (Paladin Realty Income Properties Inc)
Covenants of the Company and the Operating Partnership. Each of the Company and the Operating Partnership covenants with the Representatives, and with each Underwriter participating in the offering of Underwritten Securities, as follows:
(a) In respect to each offering of Underwritten Securities, the Company or the Operating Partnership, as the case may be, will furnish to the Underwriters named in the applicable Terms Agreement as many copies of the Time of Sale Prospectus and the Prospectus (including any Prospectus Supplement) as the Representatives shall reasonably request.
(b) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, file with the Commission and furnish, at their own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 430B of the 1933 Act Regulations, then immediately following the execution of the Terms Agreement, the Company and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplement, or, if required by such Rule 430A or 430B, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and the Operating Partnership will pay hereby jointly and severally covenant and agree with the registration fees for each offering of securities within Dealer Manager that:
2.1 The Company will: (a) use commercially reasonable efforts to cause the time period required by Rule 456(b)(1)(i) under the 1933 Act prior to the Closing Time. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than and any subsequent amendments thereto to become effective as promptly as possible; (b) promptly advise the date of execution of the Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(d) The Company and the Operating Partnership will notify the Representatives immediately, and confirm such notice in writing, of Dealer Manager (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 Act, (iii) the receipt of any comments from of, or requests for additional or supplemental information from, the Commission regarding the Registration Statement or the documents incorporated therein by referenceCommission, (ivii) of the time and date of any request by the Commission for filing of any post-effective amendment to the Registration Statement or any amendment or supplement to the Prospectus or any Time of Sale Prospectus or for additional informationProspectus, and (viii) the receipt by the Company or the Operating Partnership of any notice of objection of the Commission to the use of the Registration Statement or time and date that any post-effective amendment thereto pursuant to Rule 401(g)(2the Registration Statement becomes effective; (c) under timely file every amendment or supplement to the 1933 Act, and (vi) Registration Statement or the issuance Prospectus that may be required by the Commission of or under the Securities Act; and (d) if at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement or Statement, it will promptly notify the initiation of any proceedings for that purpose; and Dealer Manager and, to the extent the Company and determines such action is in the Operating Partnership will make every best interest of the Company, use its commercially reasonable effort to prevent the issuance of any such stop order and, if any stop order is issued, efforts to obtain the lifting thereof of such order at the earliest possible momenttime.
(e) The 2.2 In addition to and apart from the Prospectus, the Company intends to use printed sales literature or other materials prepared by the Advisor in connection with the Offering, which materials may consist of a brochure describing the Advisor and its affiliates and the objectives of the Company and the Operating Partnership will deliver may also contain pictures and summary descriptions of properties similar to the Representatives a copy of each proposed free writing prospectus those to be prepared by or on behalf of, used by, or referred to acquired by the Company that the Advisor or its affiliates have previously acquired. These materials may also include pictures and the Operating Partnership and will not use or refer summary descriptions of properties similar to any proposed free writing prospectus that is reasonably objected those to be acquired by the Underwriters.
(f) Company, as well as brochures, audiovisual materials and tape presentations highlighting and explaining various features of the Offering, properties of prior real estate programs and real estate investments in general, and articles and publications concerning real estate. The Company also may use business reply cards, introductory letters and the Operating Partnership will not take any action seminar invitation forms that would result in an Underwriterbe sent to Participating Dealers and prospective investors. Such printed sales literature or other materials prepared by the Advisor, provided that the use of said sales literature and other materials has been approved for use by the Company or in writing and all appropriate regulatory agencies, are referred to hereinafter as the Operating Partnership being required to file with the Commission pursuant to Rule 433(d) under the 1933 Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder“Authorized Sales Materials.”
(g) 2.3 The Company and the Operating Partnership will deliver will, at no expense to the Representatives as soon as possible as many signed Dealer Manager, furnish the Dealer Manager with such number of printed copies of the Registration Statement as originally filed Statement, including all amendments and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) thereto, as the Representatives Dealer Manager may reasonably request. The Company will similarly furnish to the Dealer Manager and others designated by the Dealer Manager as many copies as the Dealer Manager may reasonably request and will also deliver to in connection with the Representatives as many conformed copies Offering of the Registration Statement as originally filed Offered Shares of: (a) the Prospectus in preliminary and final form and every form of supplemental or amended prospectus; and (b) the Authorized Sales Materials.
2.4 The Company will use its commercially reasonable efforts to qualify the Offered Shares for offering and sale under, or to establish the exemption of the offering and sale of the Offered Shares from qualification or registration under, the applicable state securities or “blue sky” laws of each amendment thereto jurisdiction designated in Exhibit B hereto (including documents incorporated the “Qualified Jurisdictions”) and to maintain such qualifications or exemptions in effect throughout the Offering. In connection therewith, the Company will prepare and file all such post-sales filings or reports as may be required by reference into the Prospectus) as the Representatives may reasonably request.
(h) If, during such period after the first date of the public offering of the Underwritten Securities as the Prospectus (or in lieu thereof the notice referred to securities regulatory authorities in the Rule 173(a) under Qualified Jurisdictions in which the 0000 Xxx) Offered Shares have been sold, provided that the Dealer Manager shall have provided the Company with any information required for such filings or reports that is required by law in the Dealer Manager’s possession. Simultaneously with the execution and delivery of this Agreement, the Company is causing to be delivered to the Dealer Manager a preliminary survey relating to the state securities or “blue sky” laws of the Qualified Jurisdictions and advising of the “blue sky” action, if any, which was taken in each such jurisdiction so as to permit the offer and sale of the Offered Shares, and the Company will cause updates of such survey to be prepared and delivered to the Dealer Manager promptly following each date of: (a) the effectiveness of qualification or exemption of Offered Shares in any additional jurisdiction in which the offering and sale of Offered Shares has been authorized by appropriate state regulatory authorities; and (b) a change in the status of the qualification or exemption of the Offered Shares in any jurisdiction in any respect. It is understood that such surveys shall not constitute opinions of law, and such surveys may be based upon an examination of the statutes and regulations, if any, of such jurisdictions as set forth in the latest unofficial compilations and upon communications with authorities administering such laws in certain instances. The Company will cause the Dealer Manager to receive telephonic advice of the effectiveness of each qualification or exemption of the Offered Shares immediately thereafter. The Company will file and obtain clearance of the Authorized Sales Material to the extent required by applicable state securities laws. The Company will furnish to the Dealer Manager a copy of such papers filed by the Company in connection with sales by an Underwriter or dealer, any such qualification.
2.5 If at any time when a Prospectus is required to be delivered under the Securities Act any event shall occur occurs as a result of which it is necessarywhich, in the reasonable opinion of counsel for the Underwriters, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so amended or supplementedCompany, the Prospectus will not would include an untrue statement of a material fact or omit omits to state a any material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it ( or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaserwhich they are made, not misleading, the Company will promptly notify the Dealer Manager thereof (unless the information shall have been received from the Dealer Manager) and the Company Dealer Manager and the Operating Partnership will furnish to Participating Dealers shall suspend the Underwriters a reasonable number of copies of such amendment or supplement.
(i) The Company and the Operating Partnership will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities for offering and sale of the Offered Shares in accordance with Section 4.4 hereof until such time as the Company, in its sole discretion (a) instructs the Dealer Manager to resume the offering and sale of the Offered Shares and (b) has prepared any required supplemental or amended prospectus as shall be necessary to correct such statement or omission and to comply with the requirements of Section 10 of the Securities Act.
2.6 The Company intends to satisfy the requirements of the Code for qualification of the Company as a real estate investment trust. The Company will elect to be treated as a real estate investment trust under the applicable securities laws Code at such time as it so qualifies and real estate syndication laws will direct the investment of the proceeds of the offering of the Offered Shares in such states a manner, and other jurisdictions will exercise reasonable diligence to operate the business of the Company, so as to comply with such requirements.
2.7 The Company will apply the Representatives may reasonably designate. In each jurisdiction proceeds from the sale of the Offered Shares as stated in which the Underwritten Securities have been so qualifiedProspectus.
2.8 The Company will engage and maintain, the Company at its expense, a registrar and the Operating Partnership 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 transfer agent for the distribution of the Underwritten SecuritiesOffered Shares.
(j) With respect to each sale of Underwritten Securities, the 2.9 The Company and the Operating Partnership will make generally available to its security holders and deliver to the Dealer Manager as soon as practicable, but in any event not later than 45 days after the end of the fiscal quarter first occurring after the first anniversary of the Effective Date of the Registration Statement (unless such fiscal quarter is the last fiscal quarter of the Company’s fiscal year, in which case such earnings statement shall be delivered no later than 90 days after the close fiscal quarter first occurring after the first anniversary of the period covered thereby, Effective Date of the Registration Statement) an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form form, at the option of the Company, complying with the provisions of Rule 158 of the 1933 Securities Act Regulations) covering a twelve-month period of 12 months beginning not later than after the first day of the Company’s fiscal quarter next following the “effective date” (as defined in said Rule 158) Effective Date of the Registration Statement.
(k) The Company and . For purposes of this Section 2.10, the Operating Partnership, if applicable, during term “Effective Date” shall have the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission meaning ascribed thereto pursuant to Sections 13, 14 or 15 of Rule 158(c) and include the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(l) The Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect to Preferred Stock, Depository Shares and Debt Securities, will use its commercially reasonable efforts to maintain the listing of any Underwritten Securities listed on the New York Stock Exchange.
(m) With respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable.
(o) Unless otherwise provided in the applicable Terms Agreement, during a period of 90 days from the date of the applicable Terms Agreement relating to Underwritten Securities, the Company and the Operating Partnership will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; (ii) if such Terms Agreement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of options, and the issuance of shares in respect of such options, pursuant to a stock option plan; (iii) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter of the offering of the Underwritten Securities and the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date of the applicable Terms Agreement.
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable efforts to list the Common Stock on the New York Stock Exchange.
(r) The Company will use commercially reasonable efforts to continue to meet the requirements to qualify as a “real estate investment trust” under the Code.
(s) If the Registration Statement is an automatic shelf registration statement and the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, then the Company or the Operating Partnership, as applicable, will, prior to the third anniversary file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein last post-effective amendment to the Registration Statement shall include the new registration statement declared effective by the Commission;next preceding a sale of Offered Shares.
Appears in 1 contract
Samples: Dealer Manager Agreement (Paladin Realty Income Properties Inc)
Covenants of the Company and the Operating Partnership. Each of the The Company and the Operating Partnership covenants Partnership, jointly and severally, covenant and agree with the Representatives, and with each Underwriter participating in the offering of Underwritten Securities, as followsUnderwriters that:
(a) In respect to each offering The Registration Statement and any amendments thereto have been declared effective, and if Rule 430A is used or the filing of Underwritten Securitiesthe Prospectus is otherwise required under Rule 424(b) or Rule 434, the Company or the Operating Partnership, as the case may be, will furnish to the Underwriters named in the applicable Terms Agreement as many copies of the Time of Sale Prospectus and file the Prospectus (including any Prospectus Supplementproperly completed if Rule 430A has been used) as the Representatives shall reasonably request.
(b) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, file with the Commission and furnish, at their own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed with the Commission pursuant to Rule 424(b) within the prescribed time period and will provide evidence satisfactory to the Lead Manager of such timely filing. If the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Company elects to rely on Rule 430A or Rule 430B of the 1933 Act Regulations, then immediately following the execution of the Terms Agreement434, the Company and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplement, or, if required by such Rule 430A or 430B, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and the Operating Partnership will pay the registration fees for each offering of securities within the time period required by Rule 456(b)(1)(i) under the 1933 Act prior to the Closing Time. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a term sheet that complies with the requirements of Rule 462(b434, and the Prospectus shall not be “materially different” (as such term is used in Rule 434) from the Prospectus included in the Registration Statement not later than at the date of execution of the Terms Agreementtime it became effective. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(d) The Company and the Operating Partnership will notify you immediately (and, if requested by the Representatives immediatelyLead Manager, and will confirm such notice in writing, of ) (i) the effectiveness of any amendment to when the Registration StatementStatement and any amendments thereto become effective, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 Act, (iii) the receipt of any comments from the Commission regarding the Registration Statement or the documents incorporated therein by reference, (iv) 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’s intention to file or prepare any supplement or amendment to the Registration Statement or the Prospectus, (iv) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Prospectus Registration Statement or any Time of Sale Prospectus or for additional informationthe Prospectus, including but not limited to Rule 462(b) under the Securities Act, (v) the receipt by the Company or the Operating Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act, and (vi) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the initiation initiation, or the threatening, of any proceedings therefor, it being understood that the Company shall make every effort to avoid the issuance of any such stop order, (vi) of the receipt of any comments from the Commission, and (vii) 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; and . If the Commission shall propose or enter a stop order at any time, the Company and the Operating Partnership will make every reasonable effort to prevent the issuance of any such stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(e) of such order as soon as possible. The Company and the Operating Partnership will deliver not file any amendment to the Representatives a copy Registration Statement or any amendment of each proposed free writing or supplement to the Prospectus (including the prospectus required to be prepared by or on behalf of, used by, or referred to by the Company and the Operating Partnership and will not use or refer to any proposed free writing prospectus that is reasonably objected to by the Underwriters.
(f) The Company and the Operating Partnership will not take any action that would result in an Underwriter, the Company or the Operating Partnership being required to file with the Commission filed pursuant to Rule 433(d424(b) under or Rule 434) that differs from the 1933 Act a free writing prospectus prepared by or on behalf file at the time of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(g) The Company and the Operating Partnership will deliver to the Representatives as soon as possible as many signed copies effectiveness of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) as to which the Representatives may reasonably request and Lead Manager shall object in writing after being timely furnished in advance a copy thereof. The Company will also deliver to provide the Representatives as many conformed Lead Manager with copies of all such amendments, filings and other documents a sufficient time prior to any filing or other publication thereof to permit the Lead Manager a reasonable opportunity to review and comment thereon.
(b) The Company shall comply with the Securities Act to permit completion of the distribution as contemplated in this Agreement, the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus) as . If at any time when a prospectus relating to the Representatives may reasonably request.
(h) If, during such period after the first date of the public offering of the Underwritten Securities as the Prospectus (or in lieu thereof the notice referred to in the Rule 173(a) under the 0000 Xxx) Shares is required by law to be delivered under the Securities Act in connection with the sales by an Underwriter or dealerof Shares, any event shall occur have occurred as a result of which it is necessarythe Prospectus as then amended or supplemented would, in the reasonable opinion of counsel for the Underwriters, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light judgment of the circumstances existing at Underwriters or the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaserCompany, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus will not include an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing at the time it ( or in lieu thereof of delivery to the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, not misleading, or if to comply with the Securities Act or the Rules and Regulations it shall be necessary at any time to amend or supplement the Prospectus or Registration Statement the Company will notify you promptly and prepare and file with the Operating Partnership will furnish Commission, subject to Section 5(a) hereof, an appropriate amendment or supplement (in form and substance satisfactory to the Lead Manager) which will correct such statement or omission and will use its best efforts to have any amendment to the Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to each of you and Underwriters’ Counsel a signed copy of the Registration Statement, as initially filed and all amendments thereto, including all consents and exhibits filed therewith, and will maintain in the Company’s files manually signed copies of such documents for at least five years after the date of filing. The Company will promptly deliver to each of the Underwriters a reasonable such number of copies of any Preliminary Prospectus, the Prospectus, the Registration Statement, and all amendments of and supplements to such amendment or supplementdocuments, if any, as you may reasonably request. Prior to 10:00
A. M., New York time, on the business day next succeeding the date of this Agreement and from time to time thereafter, the Company will furnish the Underwriters with copies of the Prospectus in New York City in such quantities as you may reasonably request.
(id) The Company consents to the use and delivery of the Operating Partnership Preliminary Prospectus by the Underwriters in accordance with Rule 430 and Section 5(b) of the Securities Act.
(e) The Company will endeavoruse its best efforts, in cooperation with the UnderwritersLead Manager, at or prior to the time of effectiveness of the Registration Statement, to qualify the Underwritten Securities Shares for offering and sale under the applicable securities laws and real estate syndication laws relating to the offering or sale of the Shares of such states and other jurisdictions jurisdictions, domestic or foreign, as the Representatives Lead Manager may reasonably designate. In each jurisdiction in which the Underwritten Securities have been so qualified, the Company designate and the Operating Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue maintain such qualification in effect for so long as may be 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 the Underwritten Securitiesprocess.
(jf) With respect to each sale of Underwritten Securities, the The Company and the Operating Partnership will make generally available to its security holders and to the Underwriters as soon as practicable, but in any event not later than 90 days twelve months after the close effective date of the period covered therebyRegistration Statement (as defined in Rule 158(c) under the Securities Act), an earnings statement of the Company and the Subsidiaries (in form which need not be audited) complying with the provisions of Rule 158 Section 11(a) of the 1933 Securities Act Regulations) covering a twelve-month period beginning not later than and the first day Rules and Regulations (including, at the option of the Company’s fiscal quarter next following , Rule 158).
(g) During the period of 180 days from the date of the Prospectus (the “effective dateCompany Lock-Up Period”), without the prior written consent of the Lead Manager, the Company (i) will not, directly or indirectly, issue, offer, sell, agree to issue, offer or sell, solicit offers to purchase, grant any call option, warrant or other right to purchase, purchase any put option or other right to sell, pledge, borrow or otherwise dispose of any Relevant Security, or make any announcement of any of the foregoing, (ii) will not establish or increase any “put equivalent position” or liquidate or decrease any “call equivalent position” (in each case within the meaning of Section 16 of the Exchange Act and the rules and regulations promulgated thereunder) with respect to any Relevant Security, and (iii) will not otherwise enter into any swap, derivative or other transaction or arrangement that transfers to another, in whole or in part, any economic consequence of ownership of a Relevant Security, whether or not such transaction is to be settled by delivery of Relevant Securities, other securities, cash or other consideration; and the Company will obtain an undertaking in substantially the form of Annex III hereto of each of its officers and directors and certain of its stockholders and affiliates listed on Schedule II attached hereto not to engage in any of the aforementioned transactions on their own behalf, other than the sale of Shares as defined contemplated by this Agreement or as disclosed in said the Registration Statement and the Prospectus, and the Company’s issuance of Common Stock upon the grant and exercise of options under, or the issuance and sale of shares pursuant to, employee stock option plans in effect on the date hereof (it being agreed that the Company shall not accelerate the vesting of any option or warrant or the lapse of any repurchase right prior to the expiration of any Lock-Up Period), each as described in the Registration Statement and the Prospectus for the period of time set forth opposite such entity’s or individual’s name on Schedule II under the heading “Period of Lock-Up” (the “Holder Lock-Up Period” and together with the Company Lock-Up Period, the “Lock-Up Periods”). The Company will not file a registration statement under the Securities Act in connection with any transaction by the Company or any person that is prohibited pursuant to the foregoing, except for registration statements on Form S-8 relating to employee benefit plans. Notwithstanding the foregoing, for the purpose of allowing the Underwriters to comply with NASD Rule 1582711(f)(4), if (1) during the last 17 days of a Lock-Up Period, the Company releases earnings results or publicly announces other material news or a material event relating to the Company occurs or (2) prior to the expiration of a Lock-Up Period, the Company announces that it will release earnings results during the 16 day period beginning on the last day of such Lock-Up Period, then in each case such Lock-Up Period will be extended until the expiration of the 18 day period beginning on the date of release of the earnings results or the public announcement regarding the material news or the occurrence of the material event, as applicable, unless the Lead Manager waives, in writing, such extension. The Company will provide to each Underwriter and each stockholder subject to a Holder Lock-Up Period prior notice of any announcement by the Company that gives rise to an extension of the Lock-Up Period.
(h) During the period of five years from the effective date of the Registration Statement, the Company will furnish to you copies of all reports or other communications (financial or other) furnished to security holders or from time to time published or publicly disseminated by the Company, and will deliver to you (i) as soon as they are available, copies of any reports, financial statements and proxy or information statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed; and (ii) such additional information concerning the business and financial condition of the Company as you may from time to time reasonably request (such financial information to be on a consolidated basis to the extent the accounts of the Company and the Subsidiaries are consolidated in reports furnished to its security holders generally or to the Commission).
(i) The Company will apply the net proceeds from the sale of the Shares as set forth under the caption “Use of Proceeds” in the Prospectus.
(j) The Company will use its best efforts effect and maintain the listing of the Shares on the NYSE.
(k) The Company and the Operating Partnership, if applicableCompany, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Securities Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934 Securities Act and the Rules and Regulations within the time periods required by the 1934 Act and the 1934 Act Regulationsthereby.
(l) The Company will file with the New York Stock Exchange use its best efforts to do and perform all documents and notices things required to be done or performed under this Agreement by the New York Stock Exchange Company prior to the Closing Date or the Additional Date, as the case may be, and to satisfy all conditions precedent to the delivery of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect to Preferred Stock, Depository the Firm Shares and Debt Securities, will use its commercially reasonable efforts to maintain the listing of any Underwritten Securities listed on the New York Stock ExchangeAdditional Shares.
(m) With respect to The Company will comply with all applicable securities and other applicable laws, rules and regulations in each offering of Debt Securities, foreign jurisdiction in which the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the TrusteeDirected Shares are offered.
(n) [Reserved].
(o) The Company will not take, and will cause its affiliates (within the meaning of Rule 144 under the Securities Act) not to take, directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Shares.
(p) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide shall use their respective credit ratings best efforts to conduct their respective affairs in such a manner so as not to become required to register as an investment company under the Investment Company Act of any Underwritten Securities1940, if applicable.
(o) Unless otherwise provided in the applicable Terms Agreement, during a period of 90 days from the date of the applicable Terms Agreement relating to Underwritten Securities, the Company and the Operating Partnership will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; (ii) if such Terms Agreement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of options, and the issuance of shares in respect of such options, pursuant to a stock option plan; (iii) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter of the offering of the Underwritten Securities and the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date of the applicable Terms Agreement.
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stockas amended.
(q) If Until the Preferred Stock board of directors has determined that it is convertible into Common Stockno longer in the best interests of the Company to continue to be qualified as a REIT, the Company will use commercially reasonable efforts to list be organized in conformity with the Common Stock on requirements for qualification as a REIT under the New York Stock Exchange.
(r) The Code, and the Company will use commercially reasonable efforts conduct its operations in a manner that will enable the Company to continue to meet the requirements to qualify for qualification and taxation as a “real estate investment trust” REIT under the Code.
(s) If the Registration Statement is an automatic shelf registration statement and the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, then the Company or the Operating Partnership, as applicable, will, prior to the third anniversary file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission;
Appears in 1 contract
Samples: Underwriting Agreement (Newkirk Realty Trust, Inc.)
Covenants of the Company and the Operating Partnership. Each of the Company and the Operating Partnership covenants with the Representatives, and with each Underwriter participating in the offering of Underwritten Securities, as follows:
(a) In respect to each offering of Underwritten Securities, the Company or the Operating Partnership, as the case may be, will furnish to the Underwriters named in the applicable Terms Agreement as many copies of the Time of Sale Prospectus and the Prospectus (including any Prospectus Supplement) as the Representatives shall reasonably request.
(b) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, file with the Commission and furnish, at their own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 430B of the 1933 Act Regulations, then immediately following the execution of the Terms Agreement, the Company and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplement, or, if required by such Rule 430A or 430B, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and the Operating Partnership will pay the registration fees for each offering of securities within the time period required by Rule 456(b)(1)(i) under the 1933 Act prior to the Closing Time. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than the date of execution of the Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(d) The Company and the Operating Partnership will notify the Representatives immediately, and confirm such notice in writing, of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 Act, (iii) the receipt of any comments from the Commission regarding the Registration Statement or the documents incorporated therein by reference, (iv) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or any Time of Sale Prospectus or for additional information, (v) the receipt by the Company or the Operating Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act, and (vi) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; and the Company and the Operating Partnership will make every reasonable effort to prevent the issuance of any such stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(e) The Company and the Operating Partnership will deliver to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and the Operating Partnership and will not use or refer to any proposed free writing prospectus that is reasonably objected to by the Underwriters.
(f) The Company and the Operating Partnership will not take any action that would result in an Underwriter, the Company or the Operating Partnership being required to file with the Commission pursuant to Rule 433(d) under the 1933 Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(g) The Company and the Operating Partnership will deliver to the Representatives as soon as possible as many signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) as the Representatives may reasonably request and will also deliver to the Representatives as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus) as the Representatives may reasonably request.
(h) If, during such period after the first date of the public offering of the Underwritten Securities as the Prospectus (or in lieu thereof the notice referred to in the Rule 173(a) under the 0000 Xxx) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriters, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it ( (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, not misleading, and the Company and the Operating Partnership will furnish to the Underwriters a reasonable number of copies of such amendment or supplement.
(i) The Company and the Operating Partnership will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions as the Representatives may reasonably designate. In each jurisdiction in which the Underwritten Securities have been so qualified, the Company and the Operating Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities.
(j) With respect to each sale of Underwritten Securities, the The Company and the Operating Partnership will file such reports pursuant to the 1934 Act as are necessary in order to make generally available to its security holders securityholders as soon as practicable, but not later than 90 days after the close of the period covered thereby, practicable an earnings statement (in form complying with for the provisions purpose of, and to provide to the Underwriters the benefits contemplated by, the last paragraph of Rule 158 Section 11(a) of the 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined in said Rule 158) of the Registration StatementAct.
(k) The Company and the Operating Partnership, if applicable, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(l) The Company will file with the New York Stock Exchange NYSE all documents and notices required by the New York Stock Exchange NYSE of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect to Preferred Stock, Depository Shares and Debt Securities, will use its commercially reasonable efforts to maintain the listing of any Underwritten Securities listed on the New York Stock ExchangeNYSE.
(m) With respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable.
(o) Unless otherwise provided in the applicable Terms Agreement, during a period of 90 days from the date of the applicable Terms Agreement relating to Underwritten Securities, the Company and the Operating Partnership will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; and (ii) if such Terms Agreement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of optionsshares of restricted stock, restricted stock units, options or other similar securities pursuant to employee or director equity plans, and the issuance of shares in respect of the conversion or exercise of any such options, pursuant to a stock option plansecurities; (iii) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter of the offering of the Underwritten Securities and the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date of the applicable Terms Agreement.
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable efforts to list the Common Stock on the New York Stock Exchange.
(r) The Company will use commercially reasonable efforts to continue to meet the requirements to qualify as a “real estate investment trust” under the Code.
(s) If the Registration Statement is an automatic shelf registration statement and the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, then the Company or the Operating Partnership, as applicable, will, prior pursuant to the third anniversary file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the CommissionDuke Realty 401(k) Plan;
Appears in 1 contract
Covenants of the Company and the Operating Partnership. Each of the Company and the Operating Partnership covenants with the Representatives, and with each Underwriter participating in the offering of Underwritten Securities, as follows:
(a) In respect to each offering of Underwritten Securities, the Company or the Operating Partnership, as the case may be, will furnish to the Underwriters named in the applicable Terms Agreement as many copies of the Time of Sale Prospectus and the Prospectus (including any Prospectus Supplement) as the Representatives shall reasonably request.
(b) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, file with the Commission and furnish, at their own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 430B of the 1933 Act Regulations, then immediately following the execution of the Terms Agreement, the Company and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplement, or, if required by such Rule 430A or 430B, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and the Operating Partnership will pay hereby jointly and severally covenant and agree with the registration fees for each offering of securities within Dealer Manager that:
2.1 The Company will: (a) use commercially reasonable efforts to cause the time period required by Rule 456(b)(1)(i) under the 1933 Act prior to the Closing Time. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than and any subsequent amendments thereto to become effective as promptly as possible; (b) promptly advise the date of execution of the Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(d) The Company and the Operating Partnership will notify the Representatives immediately, and confirm such notice in writing, of Dealer Manager (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 Act, (iii) the receipt of any comments from of, or requests for additional or supplemental information from, the Commission regarding the Registration Statement or the documents incorporated therein by referenceCommission, (ivii) of the time and date of any request by the Commission for filing of any post-effective amendment to the Registration Statement or any amendment or supplement to the Prospectus or any Time of Sale Prospectus or for additional informationProspectus, and (viii) the receipt by the Company or the Operating Partnership of any notice of objection of the Commission to the use of the Registration Statement or time and date that any post-effective amendment thereto pursuant to Rule 401(g)(2the Registration Statement becomes effective; (c) under timely file every amendment or supplement to the 1933 Act, and (vi) Registration Statement or the issuance Prospectus that may be required by the Commission of or under the Securities Act; and (d) if at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement or Statement, it will promptly notify the initiation of any proceedings for that purpose; and Dealer Manager and, to the extent the Company and determines such action is in the Operating Partnership will make every best interest of the Company, use its commercially reasonable effort to prevent the issuance of any such stop order and, if any stop order is issued, efforts to obtain the lifting thereof of such order at the earliest possible momenttime.
(e) The 2.2 In addition to and apart from the Prospectus, the Company and intends to use printed sales literature or other materials in connection with the Operating Partnership will deliver to the Representatives a copy of each proposed free writing prospectus to be Offering prepared by or on behalf of, used by, or referred to by the Company and or Mxxxx National Advisor I, LLC, a Delaware limited liability company that serves as the Operating Partnership and will not use Company’s advisor pursuant to the terms of an advisory agreement (the “Advisor”), which materials are generally described in the Prospectus. Such printed sales literature or refer to any proposed free writing prospectus that is reasonably objected to other materials prepared by the Underwriters.
(f) The Company and the Operating Partnership will not take any action that would result in an Underwriter, the Company or the Operating Partnership being required Advisor, provided that the use of said sales literature and other materials has been approved for use by the Company in writing and all appropriate regulatory agencies, are referred to file hereinafter as the “Authorized Sales Materials.” In the event that the Company uses printed materials in connection with the Commission pursuant to Rule 433(d) under the 1933 Act a free writing prospectus Offering prepared by the Company or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunderAdvisor intended for “broker-dealer use only,” Dealer Manager shall use such “broker-dealer use only” materials in accordance with Section 4.3 below.
(g) 2.3 The Company and the Operating Partnership will deliver will, at no expense to the Representatives as soon as possible as many signed Dealer Manager, furnish the Dealer Manager with such number of printed copies of the Registration Statement as originally filed Statement, including all amendments and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) thereto, as the Representatives Dealer Manager may reasonably request. The Company will similarly furnish to the Dealer Manager and others designated by the Dealer Manager as many copies as the Dealer Manager may reasonably request in connection with the Offering of the Offered Shares of: (a) the Prospectus in preliminary and final form and every form of supplemental or amended prospectus; and (b) the Authorized Sales Materials.
2.4 The Company will also deliver use its commercially reasonable efforts to qualify the Offered Shares for offering and sale under, or to establish the exemption of the offering and sale of the Offered Shares from qualification or registration under, the applicable state securities or “blue sky” laws of each jurisdiction designated in Exhibit B hereto (the “Qualified Jurisdictions”) and to maintain such qualifications or exemptions in effect throughout the Offering. In connection therewith, the Company will prepare and file all such post-sales filings or reports as may be required by the securities regulatory authorities in the Qualified Jurisdictions in which the Offered Shares have been sold, provided that the Dealer Manager shall have provided the Company with any information required for such filings or reports that is in the Dealer Manager’s possession. The Company will notify the Dealer Manager promptly following each date of: (a) the effectiveness of qualification or exemption of Offered Shares in any additional jurisdiction in which the offering and sale of Offered Shares has been authorized by appropriate state regulatory authorities; and (b) a change in the status of the qualification or exemption of the Offered Shares in any jurisdiction in any respect. The Company will file and obtain clearance of the Authorized Sales Material to the Representatives as many conformed copies extent required by applicable state securities laws. The Company will furnish to the Dealer Manager a copy of such papers filed by the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus) as the Representatives may reasonably requestCompany in connection with any such qualification.
(h) If, during such period after the first date of the public offering of the Underwritten Securities as the 2.5 If at any time when a Prospectus (or in lieu thereof the notice referred to in the Rule 173(a) under the 0000 Xxx) is required by law to be delivered in connection with sales by an Underwriter or dealer, under the Securities Act any event shall occur occurs as a result of which it is necessarywhich, in the reasonable opinion of counsel for the Underwriters, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so amended or supplementedCompany, the Prospectus will not would include an untrue statement of a material fact or omit omits to state a any material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it ( or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaserwhich they are made, not misleading, the Company will promptly notify the Dealer Manager thereof (unless the information shall have been received from the Dealer Manager) and the Company Dealer Manager and the Operating Partnership will furnish to Participating Dealers shall suspend the Underwriters a reasonable number of copies of such amendment or supplement.
(i) The Company and the Operating Partnership will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities for offering and sale under of the applicable securities laws and real estate syndication laws of Offered Shares in accordance with Section 4.3 hereof until such states and other jurisdictions time as the Representatives may reasonably designate. In each jurisdiction Company, in which its sole discretion (a) instructs the Underwritten Securities have been so qualified, Dealer Manager to resume the Company offering and the Operating Partnership 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 sale of the Underwritten SecuritiesOffered Shares and (b) has prepared any required supplemental or amended prospectus as shall be necessary to correct such statement or omission and to comply with the requirements of Section 10 of the Securities Act.
(j) With respect to each sale of Underwritten Securities, the Company and the Operating Partnership will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined in said Rule 158) of the Registration Statement.
(k) The Company and the Operating Partnership, if applicable, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(l) 2.6 The Company will file with apply the New York Stock Exchange all documents and notices required by proceeds from the New York Stock Exchange sale of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect to Preferred Stock, Depository the Offered Shares and Debt Securities, will use its commercially reasonable efforts to maintain as stated in the listing of any Underwritten Securities listed on the New York Stock ExchangeProspectus.
(m) With respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable.
(o) Unless otherwise provided in the applicable Terms Agreement, during a period of 90 days from the date of the applicable Terms Agreement relating to Underwritten Securities, the Company and the Operating Partnership will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; (ii) if such Terms Agreement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of options, and the issuance of shares in respect of such options, pursuant to a stock option plan; (iii) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter of the offering of the Underwritten Securities and the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date of the applicable Terms Agreement.
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable efforts to list the Common Stock on the New York Stock Exchange.
(r) 2.7 The Company will use commercially reasonable efforts to continue to meet engage and maintain, at its expense, a registrar and transfer agent for the requirements to qualify as a “real estate investment trust” under the CodeOffered Shares.
(s) If the Registration Statement is an automatic shelf registration statement and the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, then the Company or the Operating Partnership, as applicable, will, prior to the third anniversary file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission;
Appears in 1 contract
Samples: Dealer Manager Agreement (Moody National REIT I, Inc.)
Covenants of the Company and the Operating Partnership. Each of the Company and the Operating Partnership covenants with the Representatives, and with each Underwriter participating in the offering of Underwritten Securities, as follows:
(a) In respect to each offering of Underwritten Securities, the Company or the Operating Partnership, as the case may be, will furnish to the Underwriters named in the applicable Terms Agreement as many copies of the Time of Sale Prospectus and the Prospectus (including any Prospectus Supplement) as the Representatives shall reasonably request.
(b) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, file with the Commission and furnish, at their own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 430B of the 1933 Act Regulations, then immediately following the execution of the Terms Agreement, the Company and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplement, or, if required by such Rule 430A or 430B, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and the Operating Partnership will pay the registration fees for each offering of securities within the time period required by Rule 456(b)(1)(i) under the 1933 Act prior to the Closing Time. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than the date of execution of the Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(d) The Company and the Operating Partnership will notify the Representatives immediately, and confirm such notice in writing, of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 Act, (iii) the receipt of any comments from the Commission regarding the Registration Statement or the documents incorporated therein by reference, (iv) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or any Time of Sale Prospectus or for additional information, (v) the receipt by the Company or the Operating Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act, and (vi) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; and the Company and the Operating Partnership will make every reasonable effort to prevent the issuance of any such stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(e) The Company and the Operating Partnership will deliver to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and the Operating Partnership and will not use or refer to any proposed free writing prospectus that is reasonably objected to by the Underwriters.
(f) The Company and the Operating Partnership will not take any action that would result in an Underwriter, the Company or the Operating Partnership being required to file with the Commission pursuant to Rule 433(d) under the 1933 Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(g) The Company and the Operating Partnership will deliver to the Representatives as soon as possible as many signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) as the Representatives may reasonably request and will also deliver to the Representatives as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus) as the Representatives may reasonably request.
(h) If, during such period after the first date of the public offering of the Underwritten Securities as the Prospectus (or in lieu thereof the notice referred to in the Rule 173(a) under the 0000 Xxx) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriters, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it ( (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, not misleading, and the Company and the Operating Partnership will furnish to the Underwriters a reasonable number of copies of such amendment or supplement.
(i) The Company and the Operating Partnership will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions as the Representatives may reasonably designate. In each jurisdiction in which the Underwritten Securities have been so qualified, the Company and the Operating Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities.
(j) With respect to each sale of Underwritten Securities, the The Company and the Operating Partnership will file such reports pursuant to the 1934 Act as are necessary in order to make generally available to its security holders securityholders as soon as practicable, but not later than 90 days after the close of the period covered thereby, practicable an earnings statement (in form complying with for the provisions purpose of, and to provide to the Underwriters the benefits contemplated by, the last paragraph of Rule 158 Section 11(a) of the 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined in said Rule 158) of the Registration StatementAct.
(k) The Company and the Operating Partnership, if applicable, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(l) The Company will file with the New York Stock Exchange NYSE all documents and notices required by the New York Stock Exchange NYSE of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect to Preferred Stock, Depository Shares and Debt Securities, will use its commercially reasonable efforts to maintain the listing of any Underwritten Securities listed on the New York Stock ExchangeNYSE.
(m) With respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable.
(o) Unless otherwise provided in the applicable Terms Agreement, during a period of 90 days from the date of the applicable Terms Agreement relating to Underwritten Securities, the Company and the Operating Partnership will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; and (ii) if such Terms Agreement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of optionsshares of restricted stock, restricted stock units, options or other similar securities pursuant to employee or director equity plans, and the issuance of shares in respect of the conversion or exercise of any such options, pursuant to a stock option plansecurities; (iii) the issuance of shares of Common Stock pursuant to the Duke Realty 401(k) Plan; (iv) the issuance of shares pursuant to a dividend reinvestment plan, including the Company’s Direct Stock Purchase and Dividend Reinvestment Plan; (v) the issuance of shares pursuant to an employee stock purchase plan; and (ivvi) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter of the offering of the Underwritten Securities and the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date of the applicable Terms Agreement.
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable efforts to list the Common Stock on the New York Stock ExchangeNYSE.
(r) The Company will use commercially reasonable efforts to continue to meet the requirements to qualify as a “real estate investment trust” under the Code.
(s) With respect to each offering of the Underwritten Securities, the Company will use the net proceeds received by it from the sale of such Underwritten Securities in the manner specified in the applicable Prospectus Supplement.
(t) If the Registration Statement is an automatic shelf registration statement and the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, then the Company or the Operating Partnership, as applicable, will, prior to the third anniversary file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission;
Appears in 1 contract
Covenants of the Company and the Operating Partnership. Each of the The Company covenants and the Operating Partnership covenants agrees with the Representatives, and with each Underwriter participating in the offering of Underwritten Securities, as followsseveral Underwriters that:
(a) In respect The Company will (A) prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, (B) not file any amendment to each offering of Underwritten Securities, the Company Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Operating Partnership, as the case may be, will furnish to the Underwriters named in the applicable Terms Agreement as many copies Prospectus of the Time of Sale Prospectus and the Prospectus (including any Prospectus Supplement) as which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably requestobjected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters.
(b) If The Company will (A) not make any offer relating to the Time of Sale Shares that would constitute an Issuer Free Writing Prospectus is being used or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, be filed by the Company or the Operating Partnership will prepare, file with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included on Schedule III hereto, (B) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (C) comply with the requirements of Rules 164 and furnish, at their own expense, to 433 under the Underwriters and Act applicable to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Issuer Free Writing Prospectus, as amended or supplemented, will no longer conflict including the requirements relating to timely filing with the Registration StatementCommission, legending and record keeping and (D) not take any action that would result in an Underwriter or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed Company being required to file with the Commission pursuant to Rule 424(b433(d) under the Act a free writing prospectus prepared by or on behalf of the 1933 Act Regulations, any information shall such Underwriter that such Underwriter otherwise would not have been omitted therefrom required to file thereunder. The Company will satisfy the conditions in reliance upon Rule 430A or Rule 430B of 433 under the 1933 Act Regulations, then immediately following the execution of the Terms Agreement, the Company and the Operating Partnership will prepare, and to avoid a requirement to file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, and Rule 424(bany electronic road show.
(c) of the 1933 Act Regulations, a Prospectus Supplement, or, if required by such Rule 430A or 430B, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and will promptly notify the Operating Partnership will pay Representatives if the registration fees for each offering of securities within the Company ceases to be an Emerging Growth Company at any time period required by Rule 456(b)(1)(i) under the 1933 Act prior to the Closing Time. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(blater of (A) Registration Statement not later than the date of execution completion of the Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 distribution of the 1933 Shares within the meaning of the Act Regulationsand (B) completion of the 180-day restricted period referred to in Section 4(k) hereof.
(d) The Company and the Operating Partnership will notify advise the Representatives immediately, and confirm such notice in writing, of promptly (iA) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 Act, (iii) the receipt of any comments from the Commission regarding the Registration Statement or the documents incorporated therein by reference, (iv) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or any Time of Sale Prospectus or for additional information, (v) the receipt by the Company or the Operating Partnership of any notice of objection of the Commission to the use of when the Registration Statement or any post-effective amendment thereto pursuant shall have become effective, (B) of receipt of any comments from the Commission, (C) when any supplement to Rule 401(g)(2the Prospectus, any Issuer Free Writing Prospectus, any Written Testing-the-Waters Communication or any amendment to the Prospectus has been filed, (D) under of any request of the 1933 ActCommission for amendment of the Registration Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, and including, but not limited to, any request for information concerning any Written Testing-the-Waters Communication, (viE) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the initiation use of any Preliminary Prospectus, any Issuer Free Writing Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any proceedings for that purpose; and purpose or pursuant to Section 8A of the Company and Act, (F) of the Operating Partnership will make every reasonable effort to prevent the issuance occurrence of any such stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(e) The Company and the Operating Partnership will deliver to the Representatives a copy of each proposed free writing prospectus to be prepared by event or on behalf of, used by, or referred to by the Company and the Operating Partnership and will not use or refer to any proposed free writing prospectus that is reasonably objected to by the Underwriters.
(f) The Company and the Operating Partnership will not take any action that would result in an Underwriter, the Company or the Operating Partnership being required to file with the Commission pursuant to Rule 433(d) under the 1933 Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(g) The Company and the Operating Partnership will deliver to the Representatives as soon as possible as many signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) as the Representatives may reasonably request and will also deliver to the Representatives as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus) as the Representatives may reasonably request.
(h) If, during such period after the first date of the public offering of the Underwritten Securities as development within the Prospectus (or in lieu thereof the notice referred to in the Rule 173(a) under the 0000 Xxx) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur Delivery Period as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriters, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaserProspectus, the Company and the Operating Partnership will forthwith amend General Disclosure Package, any Issuer Free Writing Prospectus or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, any Written Testing-the-Waters Communication as so then amended or supplemented, the Prospectus will not supplemented would include an any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at when the time it ( Prospectus, the General Disclosure Package, any such Issuer Free Writing Prospectus or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) any Written Testing-the-Waters Communication is delivered to a purchaser, not misleading, and (G) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or, to the actual knowledge of the Company, threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any order referred to in clause (E) or (G) of this paragraph and to obtain as soon as possible the lifting thereof, if issued.
(e) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose; provided that the Company shall not be required to (x) qualify as a foreign corporation, (y) file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent, or (z) subject itself to taxation in any such jurisdiction if it is not otherwise so subject. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(f) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(g) The Company will comply with the Act and the Operating Partnership Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer, any event or development shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(h) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event or development shall occur or condition shall exist as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will prepare, file with the Commission (if required) and furnish to the Underwriters a reasonable number of copies of such and any dealers an appropriate amendment or supplementsupplement to the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law.
(i) The Company and the Operating Partnership will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions as the Representatives may reasonably designate. In each jurisdiction in which the Underwritten Securities have been so qualified, the Company and the Operating Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities.
(j) With respect to each sale of Underwritten Securities, the Company and the Operating Partnership will make generally available to its security holders holders, as soon as practicableit is practicable to do so, but in any event not later than 90 days 15 months after the close effective date of the period covered therebyRegistration Statement, an earnings statement (which need not be audited) in form complying with the provisions of Rule 158 of the 1933 Act Regulations) reasonable detail, covering a twelve-month period of at least 12 consecutive months beginning not later than after the first day of the Company’s fiscal quarter next following the “effective date” (as defined in said Rule 158) date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 under the Act and will advise you in writing when such statement has been so made available.
(j) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, the General Disclosure Package and the Prospectus.
(k) The No offering, pledge, sale, contract to sell, short sale or other disposition of any shares of Class A Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Class A Common Stock (including shares of Class B Common Stock and OP Units) or derivative of Class A Common Stock (or agreement for such) will be made for a period of 180 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc. and Citigroup Global Markets Inc.; provided that, the foregoing restrictions shall not apply to (i) the Shares to be sold by the Company hereunder, (ii) shares or other securities issuable pursuant to equity incentive plans, employee benefit plans, qualified stock options plans or other employee compensation plans existing on the date hereof, as described in the Registration Statement, the General Disclosure Package and the Operating PartnershipProspectus, if applicable, during provided that each recipient of such securities is subject to the period when restrictions in Exhibit A hereto or the Prospectus is required terms of such securities or the plans pursuant to which they have been issued do not permit them to be delivered under sold by the 1933 Act or holder thereof within for a period of 180 days after the 1934 Actdate of the Prospectus, will file all documents required to be filed and (iii) the issuance of shares in connection with the Commission pursuant acquisition of, or a joint venture with, another company if both (A) each recipient of such securities shall have executed and delivered to Sections 13the Representatives an agreement substantially in the form of Exhibit A hereto and (B) the aggregate number of shares issued in such transactions, 14 or 15 taken together, does not exceed 5% of the 1934 Act within aggregate number of shares of Class A Common Stock of the time periods required by Company outstanding immediately following the 1934 Act and the 1934 Act Regulationsoffering contemplated hereby.
(l) The Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect to Preferred Stock, Depository Shares and Debt Securities, will use its commercially reasonable efforts to maintain list the listing of any Underwritten Securities listed Shares on the New York Stock Exchange.
(m) With respect The Company has caused each of the persons listed in Schedule V hereto to each offering execute and deliver to you, on or prior to the date of Debt Securitiesthis agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the “Lockup Agreement”). If the Representatives, in their sole discretion, agree to release or waive the restrictions set forth in a Lockup Agreement for an officer or director of the Company and provide the Company with notice of the impending release or waiver, substantially in the form attached as Exhibit B hereto, at least three business days before the effective date of the release or waiver, the Operating Partnership will qualify an Indenture under Company agrees to announce the 1939 Act and will endeavor to have impending release or waiver by a Statement press release substantially in the form of Eligibility submitted on behalf Exhibit C hereto through a major news service at least two business days before the effective date of the Trusteerelease or waiver.
(n) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Registration Statement, the General Disclosure Package and the Operating Partnership will take all reasonable action necessary Prospectus and shall file such reports with the Commission with respect to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide their respective credit ratings the sale of any Underwritten Securities, if applicablethe Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(o) Unless otherwise provided in the applicable Terms Agreement, during a period of 90 days from the date of the applicable Terms Agreement relating to Underwritten Securities, the The Company and the Operating Partnership will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sellshall not invest, or otherwise dispose of, (i) any securities use the proceeds received by the Company from its sale of the same class or series; (ii) if Shares in such Terms Agreement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units a manner as would require the Company or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply its subsidiaries to (i) register as an investment company under the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of options, and the issuance of shares in respect of such options, pursuant to a stock option plan; (iii) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter of the offering of the Underwritten Securities and the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date of the applicable Terms Agreement1940 Act.
(p) If the Preferred Stock is convertible into Common Stock, the The Company will reserve and keep available at all timesuse reasonable efforts to maintain a transfer agent and, free if necessary under the jurisdiction of preemptive rights and other similar rightsincorporation of the Company, a sufficient number of shares of Common Stock registrar for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable efforts to list the Common Stock on the New York Stock Exchange.
(r) The Company will use commercially reasonable efforts not take, directly or indirectly, any action designed to continue cause or result in, or that has constituted or might reasonably be expected to meet constitute, the requirements to qualify as a “real estate investment trust” under the Code.
(s) If the Registration Statement is an automatic shelf registration statement and the third anniversary stabilization or manipulation of the initial effective date price of any securities of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, then the Company or the Operating Partnership, as applicable, will, prior to the third anniversary file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission;Company.
Appears in 1 contract
Samples: Equity Underwriting Agreement (Ladder Capital Corp)
Covenants of the Company and the Operating Partnership. Each of the Company and the Operating Partnership covenants with the Representatives, and with each Underwriter participating in the offering of Underwritten Securities, as follows:
(a) In respect to each offering of Underwritten SecuritiesShares, the Company or will prepare a Prospectus Supplement setting forth the Operating Partnershipnumber of Underwritten Shares covered thereby and their terms not otherwise specified in the Prospectus pursuant to which the Underwritten Shares are being offered, the name of the Underwriter participating in the offering and the number of Underwritten Shares which such Underwriter has agreed to purchase, the price at which the Underwritten Shares are to be purchased by the Underwriter from the Company, the initial public offering price, if any, the selling concession and reallowance, if any, and such other information as the case may beUnderwriter and the Company deem appropriate in connection with the offering of the Underwritten Shares; and the Company will transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424(b), to the extent and within the period requested by Rule 424(b) under the 1933 Act Regulations, and will furnish to the Underwriters named in the applicable Terms Agreement Underwriter as many copies of the Time of Sale Prospectus and the Prospectus (including any such Prospectus Supplement) as the Representatives Underwriter shall reasonably request.
(b) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company or the Operating Partnership will prepare, file with the Commission and furnish, at their own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement preliminary prospectus supplement was filed with the Commission pursuant to Rule 424(b) of under the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 430B of the 1933 Act Regulationstherefrom, then immediately following the execution of the Terms Agreement, the Company and the Operating Partnership will immediately prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, and Rule 424(b) of under the 1933 Act Regulations, a copy of a final Prospectus Supplement, or, if required by such Rule 430A or 430B, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and the Operating Partnership will pay the registration fees for each offering .
(c) For a period of securities within the time period required by Rule 456(b)(1)(i) under the 1933 Act prior to the Closing Time. If requiredthree months following any sale of Underwritten Shares, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than the date of execution of the Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(d) The Company and the Operating Partnership will notify the Representatives Underwriter immediately, and confirm such notice in writing, of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 Act, (iii) the receipt of any comments from the Commission regarding the Registration Statement or the documents incorporated therein by referenceCommission, (iv) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or any Time of Sale Prospectus or for additional information, and (v) the receipt by the Company or the Operating Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act, and (vi) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; and the Company and the Operating Partnership will make every reasonable effort to prevent the issuance of any such stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(d) At any time when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Shares, the Company will give the Underwriter notice of its intention to file or prepare any amendment to the Registration Statement or any amendment or supplement to the Prospectus, whether pursuant to the 1933 Act, 1934 Act or otherwise, will furnish the Underwriter with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing and, unless required by law, will not file or use any such amendment or supplement or other documents in a form to which the Underwriter or counsel for the Underwriter shall reasonably object.
(e) The Company and will, to the Operating Partnership will extent it has not already done so, deliver to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and the Operating Partnership and will not use or refer to any proposed free writing prospectus that is reasonably objected to by the Underwriters.
(f) The Company and the Operating Partnership will not take any action that would result in an Underwriter, the Company or the Operating Partnership being required to file with the Commission pursuant to Rule 433(d) under the 1933 Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(g) The Company and the Operating Partnership will deliver to the Representatives as soon as possible as many one signed copies copy of the Registration Statement as originally filed and of each amendment (with respect to documents filed pursuant to the 1934 Act, conformed copies will suffice) thereto (including conformed copies of exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) as the Representatives may reasonably request and will also deliver delivery to the Representatives Underwriter as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (or to the Prospectus, including documents incorporated by reference into the Prospectus) , as the Representatives Underwriter may reasonably request.
(hf) IfThe Company will furnish to the Underwriter, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such period after the first date number of the public offering copies of the Underwritten Securities as the Prospectus (as amended or in lieu thereof supplemented) as the notice referred to in Underwriter may reasonably request for the Rule 173(apurposes contemplated by the 1933 Act or the 1934 Act or the respective applicable rules and regulations of the Commission thereunder.
(g) under the 0000 Xxx) is required by law to be delivered in connection with sales by an Underwriter or dealer, If any event shall occur as a result of which it is necessary, in the reasonable opinion of counsel for the UnderwritersUnderwriter, to amend or supplement the Prospectus in order to comply with the 1933 Act or the 1934 Act or the respective applicable rules and regulations of the Commission thereunder or to make the Prospectus not misleading in the light of the circumstances existing at the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the UnderwritersUnderwriter) so that, as so amended or supplemented, the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it ( or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, not misleading, and the Company and the Operating Partnership will furnish to the Underwriters a reasonable number of copies of such amendment or supplement.
(ih) The Company and the Operating Partnership will endeavor, in cooperation with the UnderwritersUnderwriter, to qualify or register the applicable Underwritten Securities Shares for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions as the Representatives Underwriter may reasonably designate; provided, however, the Company will not be required to qualify or to register as a foreign corporation, file a general consent to service of process in any such jurisdiction, subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject, or provide any undertaking or make any change in its charter, declaration of trust, by-laws or other governing document that the Board of Trustees of the Company reasonably determines to be contrary to the best interests of the Company and its shareholders. In each jurisdiction in which the applicable Underwritten Securities Shares have been so qualifiedqualified or registered, the Company and the Operating Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification or registration in effect for so long as may be required for the distribution of the applicable Underwritten SecuritiesShares.
(ji) With respect to each sale of Underwritten SecuritiesShares, the Company and the Operating Partnership will make generally available to its security holders as soon as practicable, but not later than 90 60 days after the close of the period covered therebythereby (ninety (90) days in the event that the close of such period is the close of the Company's fiscal year), an earnings earning statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of the Company’s 's fiscal quarter next following the “"effective date” " (as defined in said Rule 158) of the Registration Statement.
(j) The Company will use the net proceeds received by it from the sale of the Underwritten Shares in the manner specified in the Prospectus Supplement under "Use of Proceeds."
(k) The Company and the Operating Partnership, if applicableCompany, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(l) The Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect to Preferred Stock, Depository Shares and Debt Securities, will use its commercially reasonable best efforts to maintain the listing of any Underwritten Securities listed the Common Shares on the New York Stock ExchangeNYSE.
(m) With respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable.
(o) Unless otherwise provided in the applicable Terms Agreement, during a period of 90 days from the date of the applicable Terms Agreement relating to Underwritten Securities, the Company and the Operating Partnership will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; (ii) if such Terms Agreement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of options, and the issuance of shares in respect of such options, pursuant to a stock option plan; (iii) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter of the offering of the Underwritten Securities and the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date of the applicable Terms Agreement.
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable efforts to list the Common Stock on the New York Stock Exchange.
(r) The Company will use commercially its reasonable best efforts to continue to meet the requirements to qualify as a “"real estate investment trust” " under the Code.
(sn) If During the Registration Statement is an automatic shelf registration statement period from the Closing Time until five years after the Closing Time, the Company will deliver to the Underwriter, (i) promptly upon their being mailed or filed, copies of all current, regular and the third anniversary periodic reports of the initial effective date Company mailed to its shareholders or filed with any securities exchange or with the Commission or any governmental authority succeeding to any of the Registration Statement occurs before all of the Securities have been sold by the UnderwritersCommission's functions, then and (ii) such other information concerning the Company or and its subsidiaries and affiliates as the Operating Partnership, as applicable, will, prior to the third anniversary file a new shelf registration statement and take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission;Underwriter may reasonably request.
Appears in 1 contract
Covenants of the Company and the Operating Partnership. Each of the Company and the Operating Partnership severally covenants and agrees with the Representatives, and with each Underwriter participating in the offering of Underwritten Securities, as followsUnderwriters that:
(a) In respect The Company will (A) file with the Commission pursuant to each and in accordance with Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Underwriters containing information previously omitted at the time of effectiveness of the Registration Statement not later than the second business day following the execution and delivery of this Agreement, (B) not file any amendment to the Registration Statement or supplement to the Prospectus or document incorporated by reference therein of which the Underwriters shall not previously have been advised and furnished with a copy or to which the Underwriters shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of Underwritten Securities, the Company or Shares by the Operating Partnership, as the case may be, will furnish to the Underwriters named in the applicable Terms Agreement as many copies of the Time of Sale Prospectus and the Prospectus (including any Prospectus Supplement) as the Representatives shall reasonably requestUnderwriters.
(b) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition shall exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the The Company or the Operating Partnership will prepare, file with the Commission and furnish, at their own expense, to advise the Underwriters and to promptly (A) when any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading, or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(c) If, at the time the Prospectus Supplement was filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 430B of the 1933 Act Regulations, then immediately following the execution of the Terms Agreement, the Company and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, 430B, and Rule 424(b) of the 1933 Act Regulations, a Prospectus Supplement, or, if required by such Rule 430A or 430B, a post-effective amendment to the Registration Statement (including amended Prospectuses), containing all information so omitted. The Company and the Operating Partnership will pay the registration fees for each offering of securities within the time period required by Rule 456(b)(1)(i) under the 1933 Act prior to the Closing Time. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than the date of execution of the Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111 of the 1933 Act Regulations.
(d) The Company and the Operating Partnership will notify the Representatives immediately, and confirm such notice in writing, of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus to be filed pursuant to the 1933 Actshall have been filed, (iiiB) the of receipt of any comments from the Commission, (C) of any request of the Commission regarding for amendment of the Registration Statement or the documents incorporated therein by reference, (iv) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for any Time of Sale Prospectus or for additional information, (v) the receipt by the Company or the Operating Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act, and (viD) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation use of the Prospectus or of the institution of any proceedings for that purpose; and the . The Company and the Operating Partnership will make every reasonable effort use its best efforts to prevent the issuance of any such stop order andpreventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(c) The Company will cooperate with the Underwriters in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Underwriters may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign trust or to file a general consent to service of process in any stop jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports and other documents as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Shares.
(d) The Company will deliver to, or upon the order of, the Underwriters during the period when delivery of a Prospectus is issuedrequired under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Company will deliver to obtain the lifting thereof Underwriters at or before the earliest possible momentClosing Date, one signed copy of the Registration Statement in the form it became effective and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the Underwriters may reasonably request.
(e) The Company will comply with the Act and the Operating Partnership will deliver to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf ofRules and Regulations, used by, or referred to by the Company and the Operating Partnership and will not use or refer to any proposed free writing prospectus that is reasonably objected to by the Underwriters.
(f) The Company Exchange Act, and the Operating Partnership will not take any action that would result in an Underwriter, the Company or the Operating Partnership being required to file with rules and regulations of the Commission pursuant thereunder, so as to Rule 433(d) under permit the 1933 Act a free writing prospectus prepared by or on behalf completion of the Underwriter that distribution of the Underwriter otherwise would not have been required to file thereunder.
(g) The Company Shares as contemplated in this Agreement and the Operating Partnership will deliver to Prospectus. If during the Representatives as soon as possible as many signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) as the Representatives may reasonably request and will also deliver to the Representatives as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus) as the Representatives may reasonably request.
(h) If, during such period after the first date of the public offering of the Underwritten Securities as the Prospectus (or in lieu thereof the notice referred to in the Rule 173(a) under the 0000 Xxx) which a prospectus is required by law to be delivered in connection with sales by an Underwriter the Underwriters or a dealer, any event shall occur as a result of which it is necessarywhich, in the judgment of the Company or in the reasonable opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it (or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) is delivered to a purchaser, the Company and the Operating Partnership will forthwith amend or supplement the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it ( or in lieu thereof the notice referred to in Rule 173(a) under the 0000 Xxx) Prospectus is delivered to a purchaser, not misleading, and or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (i) prepare and file with the Operating Partnership will furnish Commission an appropriate amendment to the Underwriters a reasonable number Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of copies of such amendment the circumstances when it is so delivered, be misleading, or supplementso that the Prospectus will comply with the law.
(if) The Company and the Operating Partnership will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions as the Representatives may reasonably designate. In each jurisdiction in which the Underwritten Securities have been so qualified, the Company and the Operating Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities.
(j) With respect to each sale of Underwritten Securities, the Company and the Operating Partnership will make generally available to its security holders holders, as soon as practicableit is practicable to do so, but in any event not later than 90 days 15 months after the close filing of the period covered therebyProspectus, an earnings statement (which need not be audited) in form complying with reasonable detail, covering a period of at least 12 consecutive months beginning after the provisions filing of the Prospectus, which earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined Rules and Regulations and will advise you in said Rule 158) of the Registration Statementwriting when such statement has been so made available.
(kg) The Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any fiscal quarter subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Operating Partnership, if applicable, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act RegulationsProspectus.
(lh) The Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange andNo offering, unless otherwise agreed upon with respect to Preferred Stocksale, Depository Shares and Debt Securities, will use its commercially reasonable efforts to maintain the listing short sale or other disposition of any Underwritten Securities listed on the New York Stock Exchange.
(m) With respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf Common Shares or Preferred Shares of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor’s Ratings Services (“S&P”), Xxxxx’x Investors Service, Inc. (“Xxxxx’x”) or any other nationally recognized statistical rating organization to provide their respective credit ratings of any Underwritten Securities, if applicable.
(o) Unless otherwise provided in the applicable Terms Agreement, during a period of 90 days from the date of the applicable Terms Agreement relating to Underwritten Securities, the Company and the Operating Partnership will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series; (ii) if such Terms Agreement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than the directors and executive officers of the Company; (ii) grants of options, and the issuance of shares in respect of such options, pursuant to a stock option plan; (iii) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common StockShares or Preferred Shares or derivative of Common Shares or Preferred Shares (or any agreement for such) will be made for a period of 90 days after the date of this Agreement, in connection directly or indirectly, by the Company otherwise than hereunder or with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of the lead managing underwriter Underwriters other than the issuance of Common Shares upon conversion of outstanding preferred shares of the offering Company or OP units or upon exercise of stock options issued by the Underwritten Securities and the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date of the applicable Terms AgreementCompany.
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use commercially reasonable efforts to list the Common Stock on the New York Stock Exchange.
(ri) The Company will use commercially reasonable its best efforts to continue to meet the requirements to qualify as a “real estate investment trust” REIT under the Code, subject to the fiduciary duties of the Board of Trustees of the Company to manage the business of the Company in the best interest of its shareholders.
(sj) If the Registration Statement is an automatic shelf registration statement The Company has caused each officer and the third anniversary trustee of the initial effective Company to furnish to you, on or prior to the date of the Registration Statement occurs before all this Agreement, a letter or letters, in form and substance satisfactory to you, pursuant to which each such person shall agree not to offer, sell, sell short or otherwise dispose of any Preferred Shares or Common Shares of the Securities have been sold by the Underwriters, then Company or OP Units or other capital stock of the Company or the Operating Partnership, as applicable, will, prior to the third anniversary file a new shelf registration statement and take or any other securities convertible, exchangeable or exercisable for Preferred Shares, Common Shares or OP Units or derivative of Common Shares or OP Units owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of the Underwriters (collectively, the “Lock-up Agreements”).
(k) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus.
(l) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act.
(m) The Company will maintain a transfer agent and, if necessary under the jurisdiction of organization of the Company, a registrar for the Preferred Shares and the Common Shares.
(n) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(o) The Company will take all action necessary to permit at all times have authorized, and reserved for the public offering purpose of issuance, no less than 100% of the Securities number of Common Shares needed to continue without interruption; references herein provide for the issuance of the Conversion Shares.
(p) Prior to the Registration Statement shall include Closing Date, the new registration statement declared effective by Company will take all action necessary to file with the Commission;Maryland State Department of Assessments and Taxation the Articles Supplementary for the purpose of defining the various terms of the Preferred Shares.
(q) Prior to the Closing Date, the Company will have caused the Preferred Shares, the Shares and the Conversion Shares to be approved for listing on the New York Stock Exchange.
Appears in 1 contract
Samples: Underwriting Agreement (Ramco Gershenson Properties Trust)
