Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that: (i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto. (ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request. (iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds. (iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above. (v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome. (vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits. (vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds). (viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions. (ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder. (x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer. (xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request. (xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 4 contracts
Samples: Underwriting Agreement (SCE Recovery Funding LLC), Underwriting Agreement (SCE Recovery Funding LLC), Underwriting Agreement (SCE Recovery Funding LLC)
Covenants of the Issuer. The Issuer Company covenants and agrees with the several Underwriters thatas follows:
(ia) The Issuer will upon request promptly deliver If and to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with extent the offering of the Bonds.
Remarketed Notes in the Remarketing is required (ivin the view of counsel for the Company) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 be registered under the Securities Act as in effect at the opinion time of Counsel the Remarketing, the Company shall (Section 5(a) of this Agreement, the “Registration Covenants”):
(i) if the Registration Statement is an “automatic shelf registration statement” on Form S-3ASR and if, at any time prior to the Remarketing Settlement Date, the Company receives from the Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to use the automatic shelf registration statement form, then (A) promptly notify the Remarketing Agent, (B) promptly file a new registration statement or post-effective amendment on the proper form relating to the Remarketed Notes, in a form satisfactory to the Remarketing Agent, (C) use its best efforts to cause such registration statement or post-effective amendment to be declared effective and (D) promptly notify the Remarketing Agent of such effectiveness; take all other action necessary or appropriate to permit the public offering and sale of the Remarketed Notes to continue as contemplated in the registration statement that was the subject of the Rule 401(g)(2) notice or for which the Underwriters a prospectus covering Company has otherwise become ineligible. References herein to the Bonds is Registration Statement shall include such new registration statement or post-effective amendment, as the case may be;
(ii) pay the required Commission filing fees relating to the Remarketed Notes within the time required by law Rule 456(b)(1) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act;
(iii) prepare the Prospectus, file any such Prospectus pursuant to the Securities Act within the period required by the Securities Act and the rules and regulations thereunder and use commercially reasonable efforts to cause, if not already effective, the Registration Statement to be delivered declared effective by the Commission prior to the applicable Remarketing Date (it being understood that, for so long as there is a material business transaction or development that has not yet been publicly disclosed, other than in connection with sales an Optional Remarketing, the Company will not be required to file such Registration Statement or provide such a Prospectus until the Company has publicly disclosed such transaction or development);
(iv) file with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company, be required by an Underwriter the Securities Act or dealer requested by the Commission;
(v) advise the Remarketing Agent promptly after it receives notice thereof, of the time when, (A) prior to the Remarketing Settlement Date, any amendment to the Registration Statement has been filed or becomes effective or, (B) before, on or after the Remarketing Settlement Date, any supplement to the Prospectus or any amended Prospectus has been filed, and in each such case excluding documents filed under the Exchange Act incorporated by reference and in each case of (A) and (B) furnish the Remarketing Agent with copies of such notice;
(vi) file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a) or (c), 14 or 15(d) of the Exchange Act subsequent to the Commencement Date and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Remarketed Notes (including in circumstances where such requirement may be satisfied pursuant to Rule 172 172), and during such same period to advise the Remarketing Agent, promptly after it receives notice thereof, (A) of the time when any amendment to any Registration Statement has become effective or any supplement to any Prospectus or any amended Prospectus has been filed, (B) of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus, (C) of the suspension of the qualification of the Remarketed Notes for offering or sale in any jurisdiction, (D) of the initiation or threatening of any proceeding or examination for any such purpose or pursuant to Section 8A of the Securities Act, or (E) of any request by the Commission for the amending or supplementing of any Registration Statement or Prospectus or for additional information; and in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any Prospectus or suspending any such qualification, use promptly its best efforts to obtain its withdrawal;
(vii) if reasonably requested by the Remarketing Agent, prepare a final term sheet for the Remarketed Notes, containing solely a description of the Remarketed Notes, in a form agreed to with the Remarketing Agent, and file such final term sheet and all other Issuer Free Writing Prospectuses required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Securities Act within the time required by such Rule;
(viii) furnish promptly to the Remarketing Agent such copies of the following documents in such quantities as the Remarketing Agent shall reasonably request: (a) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits); (b) the Preliminary Prospectus and any amendment or supplement thereto; (c) the Prospectus and any amendment or supplement thereto; (d) any Issuer Free Writing Prospectus and any amendment or supplement thereto, and (e) any document incorporated by reference in the Prospectus (excluding exhibits thereto); and, if at any time when delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act)) is required in connection with the Remarketing, any event relating to or affecting the Issuer, the Bonds or the Recovery Property or development shall have occurred as a result of which (1) the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (Prospectus as defined below) should be set forth in a supplement to, then amended or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus (or in lieu thereof, the Pricing Package notice referred to in Rule 173(a) under the Securities Act) is delivered, not misleading, or (2) if for any other reason it shall be necessary, in the reasonable judgment of the Company, during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Final Exchange Act, or (3) if it shall be necessary during such same period to amend or supplement an Issuer Free Writing Prospectus is delivered in order for the Issuer Free Writing Prospectus, as so amended or supplemented, not to a purchaser conflict with the information then contained in the Registration Statement, then in each case notify the Remarketing Agent and, upon its request, file such document and prepare and furnish without charge to the Remarketing Agent and to any dealer in securities as many copies as the Remarketing Agent may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance or an amended or supplemented Issuer Free Writing Prospectus that will not conflict with the Registration Statement;
(including in circumstances where such requirement may be satisfied ix) during the time between the applicable Commencement Date and the Remarketing Settlement Date, prior to filing with the Commission (a) any amendment to the Registration Statement or supplement to the Prospectus or (b) any Prospectus pursuant to Rule 172 424 under the Securities Act, furnish a copy thereof to the Remarketing Agent; and not file any such amendment or supplement that shall be reasonably disapproved by the Remarketing Agent;
(x) as soon as practicable, but in any event not later than eighteen months, after the date of a Successful Remarketing, to make generally available to its security holders an earnings statement of the Company (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.and
(vxi) The Issuer will furnish take such proper information action as the Remarketing Agent may be lawfully required and otherwise cooperate reasonably request in qualifying order to qualify the Bonds Remarketed Notes for offer and sale under the blue-sky securities or “blue sky” laws of such jurisdictions as the states Remarketing Agent may reasonably request and will continue such qualifications in effect so long as required for distribution of the United States as the Representatives may designateRemarketed Notes; provided that in no event shall the Issuer shall not Company be required to qualify as a foreign limited liability company or dealer corporation in securitiesa jurisdiction in which it is not so qualified, to file any consents a general consent to service of process under the laws of in any jurisdiction, jurisdiction or meet to submit to any other requirements deemed by the Issuer to be which it deems unduly burdensome.
(vib) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with Company shall pay: (i) the costs incident to the preparation and filing by it printing of the Registration Statement, Pricing Prospectus and Final Prospectus (including if any, any amendments and supplements thereto) and Preliminary Prospectus, any Issuer Free Writing ProspectusesProspectus, any Prospectus and any other Remarketing Materials and any amendments or supplements thereto; (ii) the issuance costs of distributing the Registration Statement, if any, any Prospectus and delivery any other Remarketing Materials and any amendments or supplements thereto; (iii) any fees and expenses of qualifying the Remarketed Notes under the securities laws of the Bonds several jurisdictions as provided in Section 7 hereof 5(a)(xi) and of preparing, printing and distributing a Blue Sky Memorandum, if any (including, without limitation, including any related reasonable fees and disbursements expenses of Counsel for counsel to the Underwriters and all trustee, rating agency and CPUC advisor feesRemarketing Agent), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), ; (iv) any fees charged by investment rating agencies for rating of the printing Remarketed Notes; (v) all other costs and delivery expenses incident to the Underwriters of reasonable quantities performance of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, obligations of the Pricing Package Company hereunder and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 Remarketing Agent hereunder; and (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (ivi) will reimburse the Underwriters for the reasonable fees and disbursements expenses of Counsel for counsel to the UnderwritersRemarketing Agent in connection with the review by the Financial Industry Regulatory Authority, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation Inc. of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profitsRemarketed Notes.
(viic) During The Company shall furnish the period from Remarketing Agent with such information and documents as the date of this Underwriting Agreement Remarketing Agent may reasonably request in connection with the transactions contemplated hereby, and to make reasonably available to the date Remarketing Agent and any accountant, attorney or other advisor retained by the Remarketing Agent such information, and such access to the appropriate officers, employees and accountants of the Company, that is five days after parties would customarily require, and reasonably requested by the Closing Remarketing Agent, in connection with a due diligence investigation conducted in accordance with applicable securities laws.
(d) Between the applicable Commencement Date and the applicable Remarketing Settlement Date, the Issuer Company will not, without the prior written consent of the RepresentativesRemarketing Agent (which consent may be withheld at the reasonable discretion of the Remarketing Agent), directly or indirectly, sell, offer, contract to sell or contract grant any option to sell, or otherwise dispose of, directly or indirectly, or announce any debt securities which mature more than one year after the offering of, any asset-backed securities (other than applicable Remarketing Settlement Date of the Bonds)Company similar to the Remarketed Notes.
(viiie) To The Company represents and agrees that, unless it obtains the extentprior written consent of the Remarketing Agent, which consent shall not be unreasonably withheld, and the Remarketing Agent represents and agrees that, unless it obtains the prior written consent of the Company, it has not made and will not make any offer relating to the Remarketed Notes that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 of the Act), required to be filed by the Company with the Commission or retained by the Company under Rule 433; provided that, if any, that any rating necessary to satisfy the condition set forth prepared and used in accordance with Section 9(bb5(f) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parentAgreement, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer prior written consent shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture deemed given with respect to any final term sheet. Any such free writing prospectus consented to in writing by the BondsCompany or the Remarketing Agent, as the case may be, is hereinafter referred to as a “Permitted Free Writing Prospectus”. To the extent The Company represents that the Issuer’s obligations are terminated or limited by it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an amendment to Section 3.07(g) “issuer free writing prospectus” (as defined in Rule 433 of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if has complied and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance requirements of Rules 164 and 433 of the 17g-5 Representations Securities Act applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
(f) The Company will prepare a final term sheet relating to the Remarketed Notes, containing only information that would not have a material adverse effect on describes the rating final terms of the Bonds or Remarketed Notes after providing the Bonds or Remarketing Agent and its legal counsel with a reasonable opportunity to review and comment on such final term sheet (ysuch final term sheet to be in form and substance as last reviewed by the Remarketing Agent and the Company), and will file such final term sheet within the period required by Rule 433(d) any noncompliance arising from the breach by an Underwriter of the representations Securities Act following the date such final terms have been established for the Remarketed Notes. Any such final term sheet is an Issuer Free Writing Prospectus and warranties and covenants set forth in Section 13 hereofa Permitted Free Writing Prospectus for purposes of this Agreement.
Appears in 4 contracts
Samples: Purchase Contract and Pledge Agreement (Anthem, Inc.), Purchase Contract and Pledge Agreement (Laclede Group Inc), Purchase Contract and Pledge Agreement (Dominion Resources Inc /Va/)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters Initial Purchaser that:
(ia) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package Offering Memorandum or any amendment thereof or supplement thereto unless the Initial Purchaser previously shall have been advised thereof and been furnished a copy thereof prior to the proposed amendment or supplement and shall not have reasonably objected in writing within five (5) Business Days after being furnished a copy thereof. If, at any time during the period beginning on the date hereof and ending on the earlier of (i) the date on which Initial Purchaser shall have completed the initial resale of all of the Notes and (ii) 90 days after the date of this Agreement, any event occurs as a result of which the Preliminary Offering Memorandum or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement Offering Memorandum as then amended or supplements or supplemented would include an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act)which they were made, not misleading; , or if it is necessary at any such time to amend or supplement the Preliminary Offering Memorandum or the Offering Memorandum to comply with any Applicable Law, the Issuer shall promptly notify the Initial Purchaser thereof and shall prepare and deliver to the Initial Purchaser, at the expense of the Issuer, an amendment of or supplement to the Preliminary Offering Memorandum or the Offering Memorandum which will correct such statement or omission or effect such compliance. In the event that the Initial Purchaser shall incur any costs in connection with the reformation of a contract of sale with any investor that received a Preliminary Offering Memorandum that contains or contained any untrue statement of material fact or failed to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Issuer and the Manager jointly and severally agree to reimburse the Initial Purchaser for such costs, provided that should the untrue statement or omission in such event Preliminary Offering Memorandum did not relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out Initial Purchaser Information (as defined in Section 3(d) above13 hereof).
(vb) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying use its reasonable efforts to arrange for qualification or exemption of the Bonds Notes for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company securities or dealer in securities, to file any consents to service of process under the “Blue Sky” laws of any jurisdiction, or meet any other requirements deemed by state that the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, Initial Purchaser shall reasonably request and shall pay or cause to be paid all reasonable expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel counsel) in connection with the qualification or exemption and in connection with the determination of the eligibility of the Notes for investment under the Underwriters laws of the jurisdictions that the Initial Purchaser may reasonably designate and all trustee, rating agency and CPUC advisor fees), will continue such qualifications or exemptions in effect in such jurisdictions until the earlier of (iiix) the qualification date on which Initial Purchaser shall have completed the initial resale of all of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, Notes and (iiy) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from 90 days after the date of this Underwriting Agreement to the date that is five days after the Closing DateAgreement, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall will not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms be required to (i) qualify to do business in any jurisdiction it is not now so qualified, (ii) take any action that would subject it to service of process in suits (other than those suits arising out of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above offering or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) sale of the Indenture with respect Notes) in any jurisdiction where it is not now so subject or (iii) subject it to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) taxation in excess of the Indenture, or otherwise, a nominal dollar amount in any such obligations shall be correspondingly terminated or limited hereunderjurisdiction where it is not now so subject.
(xc) The Issuer shall, without charge, provide to the Initial Purchaser as many copies of the Preliminary Offering Memorandum and SCE will not file the Offering Memorandum and any amendment to the Registration Statement or amendment thereof or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer thereto as the Representatives Initial Purchaser may reasonably request.
(xiid) So long The Issuer (or any of its “affiliates” as defined in Regulation D under the Bonds are rated by Act), directly or through any Rating Agencyagent, shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any “security” (as defined in the Issuer will comply Act) that is integrated with the 17g-5 Representations, other than (x) any noncompliance sale of the 17g-5 Representations Notes hereunder in a manner that would not have a material adverse effect on cause the rating exemption afforded by Section 4(2) of the Bonds Act or the Bonds or (y) any noncompliance arising from safe harbor of Regulation S thereunder to cease to be applicable to the breach by an Underwriter offer and sale of the representations and warranties and covenants set forth in Section 13 hereofNotes hereunder.
Appears in 4 contracts
Samples: Note Purchase Agreement (TAL International Group, Inc.), Note Purchase Agreement (TAL International Group, Inc.), Note Purchase Agreement (TAL International Group, Inc.)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives Representative and Counsel to for the Underwriters (as defined below) a conformed copy of the Registration Statement, certified by an officer or manager of the Issuer to be in the form as originally filed filed, including all exhibits thereto and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and the Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which the Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Securitization Property or of which the Issuer shall be advised in writing by the Representatives Representative shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, to or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus Prospectus, as applicable, by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements of or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided provided, that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement; provided, further, that Counsel for the Underwriters shall not have objected to such amendment or supplement pursuant to Section 8(a)(x) hereof or Section 8(b)(x) hereof. The Issuer will also fulfill its obligations set out in Section 3(d3(e) abovehereof.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-blue sky laws of the states of the United States as the Representatives Representative may designate; provided provided, that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, jurisdiction or to meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE DTE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (iA) the preparation and filing by it of the Registration Statement, the Pricing Prospectus and the Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (iiB) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, including reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC MPSC advisor fees), (iiiC) the qualification of the Bonds under blue-blue sky laws (including counsel fees not to exceed $15,000), ) and (ivD) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default)Section 9 hereof, 9, Section 10 hereof or Section 12 hereof, the Issuer or SCE DTE (ix) will reimburse (or cause to be reimbursed) the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, Underwriters and (iiy) will reimburse (or cause to be reimbursed) the Underwriters for their reasonable out-of-pocket expensesexpenses (other than fees and disbursements of counsel covered in clause (x) above), such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the RepresentativesRepresentative, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb9(m) of this Underwriting Agreement hereof is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actionsactions to the extent reasonably requested by any Rating Agency.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the CommissionCommission and, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, Issuer or its affiliates such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided provided, that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and not prohibited by the terms of the Basic Issuer Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the any periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, Issuer or its affiliates such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE DTE will not file any amendment to the Registration Statement or Statement, any amendment or supplement to the Final Prospectus or any amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, Underwriters or to which Hunton Pillsbury Xxxxxxxx Xxxx Xxxxxxx Xxxxx LLP, who are which is acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE the Issuer and the IssuerDTE.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the RepresentativesRepresentative, if and to the extent not posted on XXXXX or the website of the Issuer or any of its affiliate’s websiteaffiliates, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed furnished to the Bondholders holders of the Bonds (in each case to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC MPSC pursuant to the Financing Order includingOrder, but not limited toincluding any annual, any issuance advice letter semi-annual or any routine or nonmore frequent true-routine True-Up Adjustment up adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives Representative may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (xA) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the Bonds or the rating of the Bonds or the Bonds or (yB) any noncompliance arising from the breach by an Underwriter of the representations and representations, warranties and covenants set forth in Section 13 hereof.
Appears in 3 contracts
Samples: Underwriting Agreement (DTE Electric Securitization Funding II LLC), Underwriting Agreement (DTE Electric Securitization Funding II LLC), Underwriting Agreement (DTE Electric Securitization Funding I LLC)
Covenants of the Issuer. The Issuer hereby covenants and agrees with that for so long as any of the several Underwriters thatSecurities shall remain outstanding:
(a) it will duly and punctually pay the principal of and any interest on the Securities in accordance with the terms hereof;
(b) it will do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charters and statutory) and franchises;
(c) it will cause all material properties used or useful in the conduct of its business to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the reasonable judgment of Issuer may be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times; provided, however, that the foregoing shall not prevent the Issuer from discontinuing the operation or maintenance of any such properties if such discontinuance is, in the reasonable judgment of Issuer, desirable in the conduct of its business or the business of any of its subsidiaries, and not disadvantageous in any material respect to the holders of Securities; and, provided, further, that the failure to comply herewith shall not be deemed a breach hereof unless such failure would have a material adverse effect on the business, financial condition or results of operations of Issuer and its subsidiaries, taken as a whole (a "Material Adverse Effect");
(d) it will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (i) The all taxes, assessments and governmental charges levied or imposed upon the Issuer will or upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy income, profits or property of the Registration StatementIssuer, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to all lawful claims for labor, materials and supplies which, if unpaid, might by law become a lien upon the Underwriters, as soon as practicable after the date hereof, as many copies property of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order andIssuer; provided, if issuedhowever, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company pay or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings; and, provided, further, that the failure to comply herewith shall not be deemed a breach if it would not have a Material Adverse Effect;
(e) it shall furnish to each Registered Holder of Securities a copy of all expenses and taxes (except transfer taxes) in connection with (i) documents it is required to send to its shareholders at the preparation and filing by it of time the Registration Statementsame are sent to shareholders, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees annual reports and disbursements proxy statements;
(f) as soon as it becomes aware of Counsel the same, it shall give written notice to each Registered Holder of Securities of any event or occurrence which by itself or with notice or lapse of time or both would entitle the holders of the Securities to declare the principal of and any interest on the Securities immediately due and payable pursuant to the terms hereof;
(g) it will promptly obtain and maintain from time to time all authorizations, permits, approvals, consents, licenses and exemptions which are required under any applicable law or regulation to enable it to perform all of its payment, conversion and other material obligations under the Securities or which may be required for the Underwriters validity or enforceability of the Securities; provided, however, that the failure to obtain and maintain such authorizations, permits, approvals, consents, licenses and exemptions as to material obligations other than payment and conversion shall not constitute a breach of this provision unless such non-compliance materially adversely affects the Issuer’s ability to comply with its obligations under the Securities;
(h) it will duly and punctually comply with and observe all statutes now or hereafter in force and all trusteeordinances, rating agency regulation and CPUC advisor fees)by-laws thereunder and all requirements and orders of any government or other public authority; provided, however, that any non-compliance with any such statute, ordinance, regulation or by-law shall not constitute a breach of this provision unless such non-compliance materially adversely affects the Issuer’s ability to comply with its obligations under the Securities;
(iiii) the qualification it shall permit any representative of any Registered Holder or Holders of at least $250,000 aggregate principal amount of the Bonds under blue-sky laws (including counsel fees not Securities to exceed $15,000)make inspections of, (iv) and to report on, the printing property of, and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder business operations being carried out of an Underwriter default), 9, 10 or 12 hereofby, the Issuer or SCE any of its subsidiaries;
(j) it shall not:
(i) will reimburse declare or pay any cash dividends on its Common Stock or purchase, redeem or otherwise acquire or retire for value any shares of Common Stock (other than under the Underwriters for terms of the reasonable fees and disbursements of Counsel for the Underwriters, and Issuer's stock option plan); or
(ii) will reimburse the Underwriters for their reasonable out-of-pocket expensesconsolidate with or merge into any other Person, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, where the Issuer will notis not the surviving corporation, without the prior written consent of the Representativesor convey, offertransfer, sell or contract to sell, lease or otherwise dispose ofof all or substantially all of its assets, directly or indirectly, or announce except in compliance with the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition terms and conditions set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions11 below.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 3 contracts
Samples: Convertible Debenture (UHF Inc), Convertible Debenture (UHF Inc), Convertible Debenture (Target Acquisitions I, Inc.)
Covenants of the Issuer. (1) The Issuer covenants and agrees with that so long as any of the several Underwriters thatBonds remains outstanding:
(ia) The Issuer will upon request promptly deliver It shall file with the Director-General of the Kanto Local Finance Bureau or any other relevant competent authority, annual securities reports, quarterly reports or semi-annual reports (if applicable) and (if necessary) extraordinary reports, as required under the Financial Instruments and Exchange Law, and shall otherwise comply with the laws and regulations of Japan (including the Financial Instruments and Exchange Law) applicable to the Representatives and Counsel Bonds; and
(b) It shall promptly furnish to the Underwriters a conformed copy Joint-Lead Managers on behalf of the Registration Statement, certified Managers copies of all public documents filed by an officer the Issuer with the Director-General of the Issuer to be in Kanto Local Finance Bureau, the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the UnderwritersFinancial Services Agency or any other relevant competent authority, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering Bonds pursuant to the Financial Instruments and Exchange Law and other public documents as the Joint-Lead Managers may reasonably request from time to time in writing in connection with the Bonds or any other debt securities which the Issuer may hereafter issue in Japan, provided that with respect to the documents filed with the Director-General of the BondsKanto Local Finance Bureau through the Electronic Disclosure for Investors’ NETwork (EDINET), the Issuer may notify the Joint-Lead Managers on behalf of the Managers of the filing of such documents in substitution for the delivery of copies thereof.
(iv2) IfThe Issuer hereby covenants that it will furnish to the Joint-Lead Managers for use by the Managers copies of the Prospectus in such quantities as the Joint-Lead Managers may from time to time reasonably request, during such and if, before the earlier of the time when a period of time (not exceeding nine months) three months shall have elapsed after the Final Prospectus has been filed with time of the Commission pursuant to Rule 424 under filing of the Securities Act as in Supplement, or the opinion time when delivery of Counsel for the Underwriters a prospectus covering the Bonds is no longer required by Japanese law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under of any of the Securities Act)Bonds, any event relating to or affecting the Issuer, the Bonds or the Recovery Property or shall have occurred as a result of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (Prospectus as defined below) should be set forth in a supplement to, then amended or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain would include any untrue statement of a material fact fact, or omit to state any material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading, or if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the light Financial Instruments and Exchange Law, notify the Joint-Lead Managers on behalf of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely Managers and upon their request promptly prepare and furnish without charge to the activities of any of Joint-Lead Managers for use by the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(v) The Issuer will furnish such proper information Managers as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States many copies as the Representatives Joint-Lead Managers may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 reasonably request of a supplement to the Prospectus or Section 15(dan amended Prospectus which will correct such statement or omission or effect such compliance.
(3) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall alsoadvise the Joint-Lead Managers, to promptly after the extent permitted by and consistent with the Issuer’s obligations under applicable lawIssuer receives notice thereof, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to issuance by the Bonds. To Director-General of the extent that Kanto Local Finance Bureau of any notice of hearing from which may result an order requiring the Issuer’s obligations are terminated or limited by filing of an amendment to Section 3.07(gthe Shelf Registration Statement (whether as originally filed or amended) or an order suspending the effectiveness of the Indentureregistration pursuant to the Shelf Registration Statement; and in the event of the issuance of any such order, use its reasonable best efforts to promptly file such required amendment or, as the case may be, file such amendment to the Shelf Registration Statement as is necessary for such Director-General of Kanto Local Finance Bureau to terminate such suspension order or otherwise, otherwise use its reasonable best efforts to obtain such obligations shall be correspondingly terminated or limited hereundertermination.
(x4) The Issuer and SCE will not file shall at any amendment time prior to receipt of the payment of the Net Subscription Moneys to the Registration Statement or amendment or supplement Issuer pursuant to Section (2) of Article 2, forthwith notify the Final Prospectus or amendment or supplement to Joint-Lead Managers on behalf of the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as Managers of any material change affecting any of the Bonds are outstandingrepresentations, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX warranties or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report agreements of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, contained in this Agreement and (C) from time to time, any information concerning the Issuer as and the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance Joint-Lead Managers on behalf of the 17g-5 Representations that would not have a material adverse effect on Managers agree to consult each other regarding the rating of steps to be taken and the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereofcosts therefor.
Appears in 3 contracts
Samples: Subscription Agreement (Aflac Inc), Subscription Agreement (Aflac Inc), Subscription Agreement (Aflac Inc)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or preventing the use of the Registration Statement, or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 and Rule 163B under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above. The Issuer will advise the Underwriters promptly in writing when any supplement to the Pricing Package, the Final Prospectus or any amendment to the Final Prospectus has been filed or distributed.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE PG&E will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,00010,000.00), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE PG&E (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb9(t) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE PG&E will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx Xxxxxx Xxxx Xxxxxxxxx US LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE PG&E and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 2 contracts
Samples: Underwriting Agreement (PG&E Recovery Funding LLC), Underwriting Agreement (PG&E Recovery Funding LLC)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) 3.1 The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many Broker-Dealer such numbers of copies of the Pricing Prospectus and Final Prospectus any amendment or supplement thereto, with all appendices thereto, as they the Broker-Dealer may reasonably request.
(iii) The Issuer will cause or has caused request for the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable purposes contemplated by federal and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received noticeapplicable state securities laws. The Issuer also will use its reasonable best efforts deliver to prevent the issuance Broker-Dealer such number of copies of any such stop order and, if issued, to obtain printed sales literature or other materials prepared by or on behalf of the Issuer as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act Broker-Dealer may reasonably request in connection with the offering Offering. In the event that the Issuer provides any copies of the Bonds.
(iv) IfProspectus to any party, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing promptly provide to the Broker-Dealer the number identifying the copy of the Prospectus provided to such party.
3.2 The Issuer will comply with all requirements imposed upon it by the Representatives shall occur that rules and regulations of the SEC, and by all applicable state securities laws and regulations, to permit the continuance of offers and sales of the Securities, in accordance with the provisions of this Agreement and in the Issuer’s reasonable judgment after consultation with Counsel for Prospectus, and will amend or supplement the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or Prospectus comply with the Final requirements of federal and applicable state securities laws and regulations.
3.3 If at any time any event occurs as a result of which the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or would include an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or or, in view of the circumstances under which it was made, omit to state any material fact necessary in order to make the statements thereintherein not misleading, in the light Issuer will notify the Broker-Dealer thereof, effect the preparation of an amendment or supplement to the Prospectus which will correct such statement or omission to the reasonable satisfaction of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act)Broker-Dealer, not misleading; provided that should such event relate solely and deliver to the activities Broker-Dealer as many copies of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. supplement to the Prospectus as the Broker-Dealer may reasonably request.
3.4 The Issuer will also fulfill its obligations apply the net proceeds from the Offering received by it in the manner set out forth in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Prospectus. Furthermore, Issuer shall not be required sell any Securities to qualify as investors residing in the Territory unless Cobalt receives and approves a foreign limited liability company or dealer in securities, to file any consents to service of process under third-party due diligence report for the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensomeOffering.
(vi) 3.5 The Issuer shall not make any written or SCE willoral representations or statements to investors that contradict or are inconsistent with the statements made in the Prospectus, except as herein provided, pay amended or cause to be paid supplemented.
3.6 The Issuer shall at all expenses and taxes (except transfer taxes) in connection with times (i) the preparation and filing by it comply with all reasonable requests of the Registration StatementBroker-Dealer that are necessary for compliance with all applicable federal and state securities laws and regulations; (ii) maintain its compliance with all applicable federal and state securities laws and regulations, Pricing Prospectus except to the extent where the failure to do so will not have a material adverse effect; and Final Prospectus (iii) pay all related fees and expenses (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor FINRA fees), (iii) in each case that are necessary or appropriate to perform the qualification respective obligations of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable outBroker-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of Dealer under this Underwriting Agreement. The Issuer shall not in any event be liable comply with and adhere to any all applicable policies and procedures of the several Underwriters for damages on account Broker- Dealer, provided to the Issuer prior to the execution of loss of anticipated profitsthis Agreement, except where the failure to do so will not materially and adversely affect the Broker-Dealer or the Issuer.
(vii) During 3.7 The Issuer shall be responsible for supervising the period activities and training of its respective employees, agents, and independent contractors.
3.8 The Issuer agrees to promptly notify the Broker-Dealer concerning any material communications from any body or authority with jurisdiction over the date activities being undertaken pursuant to this Agreement in connection with the Offering, or the performance of this Underwriting Agreement the obligations set forth herein, unless notification is expressly prohibited by such body or authority.
3.9 Subject to the date that is five days after Broker-Dealer’s actions and the Closing Dateactions of others in connection with the Offering, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed comply with all requirements imposed upon it by applicable federal and state securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documentslaws. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstandingUpon request, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, Broker-Dealer a copy of each report of such papers filed by the Issuer filed in connection with any such registration or exemption, as applicable.
3.10 During the Commission under Offering Period, the Exchange Act or mailed Issuer will deliver to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, Broker-Dealer a copy of any filings with report, documents, materials, or information provided to investors in the CPUC pursuant Offering by the Issuer or any other party, at the time that such reports, documents, materials, or information are furnished to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filingsholders of the Securities, and (C) from time to time, any such other information concerning the Issuer Issuer, as the Representatives may reasonably requestbe requested.
(xii) So long as the Bonds are rated by any Rating Agency3.11 The Issuer shall provide, pursuant to FINRA Rule 2310(b)(5), the following:
(i) a per unit estimated value of the Notes, developed in a manner reasonably designed to ensure it is reliable, in the Issuer’s periodic reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”);
(ii) an explanation of the method by which the per unit estimated value was developed;
(iii) the date of the valuation; and
(iv) in a periodic or current report filed pursuant to Section 13(a) or 15(d) of the Exchange Act within 150 days following the second anniversary of breaking escrow, if applicable and in each annual report thereafter, a per unit estimated value:
a. based on valuations of the assets and liabilities of the Issuer will comply performed at least annually, by, or with the 17g-5 Representationsmaterial assistance or confirmation of, other than (x) any noncompliance a third-party valuation expert or service;
b. derived from a methodology that conforms to standard industry practice; and
c. accompanied by a written opinion or report by the Issuer, delivered at least annually, that explains the scope of the 17g-5 Representations that would not have a material adverse effect on review, the rating of methodology used to develop the Bonds valuation or valuations, and the Bonds basis for the value or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereofvalues reported.
Appears in 2 contracts
Samples: Broker Dealer Agreement (iCap Vault 1, LLC), Broker Dealer Agreement (Vault Holding 1, LLC)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or preventing the use of the Registration Statement, or the institution of any proceeding therefor of which the Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 and Rule 163B under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Energy Transition Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d3(e) above. The Issuer will advise the Underwriters promptly in writing when any supplement to the Pricing Package, the Final Prospectus or any amendment to the Final Prospectus has been filed or distributed.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, certain reasonable fees and disbursements of Counsel for the Underwriters and all trustee, trustee and rating agency and CPUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), and (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Issuer Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE PNM will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Hxxxxx Axxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE PNM and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX EXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC NMPRC pursuant to the Financing Order including, but not limited to, any issuance advice letter notice or any routine or non-routine standard True-Up Adjustment filings (semi-annual, quarterly (beginning two years prior to the final maturity date of the Bonds) and optional interim) and non-standard true-up adjustment filings, as described in the Financing Order, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 2 contracts
Samples: Underwriting Agreement (PNM Energy Transition Bond Co I, LLC), Underwriting Agreement (PNM Energy Transition Bond Co I, LLC)
Covenants of the Issuer. 9.1 The Issuer hereby covenants with each Subscriber that it will:
(a) offer, sell, issue and agrees deliver the Units pursuant to exemptions from the prospectus filing, registration or qualification requirements of Applicable Securities Laws and otherwise fulfil all legal requirements required to be fulfilled by the Issuer (including without limitation, compliance with all Applicable Securities Laws in connection with the several Underwriters Offering;
(b) within the required time, file with the Exchange any documents, reports and information, in the required form, required to be filed by Applicable Securities Laws in connection with the Offering, together with any applicable filing fees and other materials;
(c) the Issuer will use reasonable commercial efforts to satisfy as expeditiously as possible any conditions of the Exchange required to be satisfied prior to the Exchange’s acceptance of the Issuer’s notice of the Offering; and
(d) use its reasonable commercial efforts to obtain all necessary approvals for this Offering.
(e) The Issuer shall take all necessary actions to recommend to its directors and its shareholders that the Subscriber’s Nominee be appointed or elected, as the case may be, to the Board at each meeting of directors called for the purposes of appointing directors or each meeting of shareholders of the Issuer at which directors are to be elected and at such other times as may be required by the Subscriber (the “Nomination Right”).
(f) The Issuer shall take such other reasonable action necessary or advisable to facilitate the appointment to and continuing membership on the Board of the Subscriber’s Nominee.
(g) In the event of any vacancy on the Board created by the removal or resignation of the Subscriber’s Nominee as a result of such nominee’s failure to satisfy the applicable Securities Laws and/or Exchange requirements, such vacancy shall be filled with a new Subscriber’s Nominee, provided that such new nominee satisfies such Securities Laws and TSX requirements.
(h) Notwithstanding any provision in this Agreement, the Nomination Right shall expire and be of no force or effect upon the Subscriber holding less than 5,000,000 Shares.
9.2 Pre-emptive Right
(a) The Issuer grants to the Subscriber a right to purchase any authorized but unissued Shares (“New Shares”) that the Issuer may from time to time propose to issue or sell to any person in an amount such that following the subscription by the Subscriber, the Subscriber is able to maintain its pro rata share of the Issuer based on the percentage of the outstanding Shares owned by the Subscriber immediately prior to the proposed issuance or sale including the amount of any dilution resulting from the issuance of Shares under Section 9.2(i)(iv) (the “Pro Rata Portion”).
(b) The Issuer shall give written notice (an “Issuance Notice”) of any proposed issuance or sale of New Shares to the Subscriber within five Business Days following any meeting of the board of directors of the Issuer at which any such issuance or sale is approved.
(c) The Issuance Notice shall set forth the material terms and conditions of the proposed issuance or sale, including: (i) the number and description of New Shares proposed to be issued; (ii) the proposed issuance date, which shall be at least 20 Business Days from the date of the Issuance Notice; and (iii) the proposed purchase price per share of New Shares and all other material terms of the offer or sale.
(d) The Subscriber shall, for a period of 10 Business Days following the receipt of an Issuance Notice (the “Pre-Emptive Exercise Period”), have the right to elect irrevocably to purchase for cash all or any portion of the Pro Rata Portion of any New Shares on the terms and conditions, including the purchase price, set forth in the Issuance Notice by delivering a written notice to the Issuer (a “Pre-Emptive Acceptance Notice”) specifying the number of New Shares that the Subscriber desires to purchase up to the Pro Rata Portion.
(e) The delivery of a Pre-Emptive Acceptance Notice by the Subscriber shall be a binding and irrevocable offer by the Subscriber to purchase the New Shares described therein. The failure of the Subscriber to deliver a Pre-Emptive Acceptance Notice by the end of the Pre-Emptive Exercise Period shall constitute a waiver of the Subscriber’s rights with respect to the purchase of such New Shares but shall not affect the Subscriber’s rights with respect to any other future issuances or sales of New Shares.
(f) Following the expiration of the Pre-Emptive Exercise Period, the Issuer shall be free to complete the proposed issuance or sale of New Shares described in the Issuance Notice with respect to which the Subscriber waives or fails to exercise the pre-emptive right set forth in this Agreement on terms no less favourable to the Issuer than those set forth in the Issuance Notice; provided that: (i) such issuance or sale shall be closed within 20 Business Days after the expiration of the Pre-Emptive Exercise Period; and (ii) for the avoidance of doubt, the price at which the New Shares are sold to any prospective third party purchaser seeking to purchase the applicable New Shares (a “Prospective Purchaser”) shall be at least equal to or higher than the purchase price described in the Issuance Notice.
(g) If the Issuer has not sold such New Shares within such time period, the Issuer shall not thereafter issue or sell any New Shares without first again offering such shares to the Subscriber in accordance with the procedures set forth in this Subscription Agreement.
(h) The closing of any purchase by any Prospective Purchaser shall be consummated concurrently with the consummation of the issuance or sale described in the Issuance Notice. Upon the issuance or sale of any New Shares in accordance with this Subscription Agreement, the Issuer shall deliver certificates representing the New Shares, free and clear of any mortgage, lien, charge, hypothec or encumbrance, whether fixed or floating, on, or any security interest in, any property, whether real, personal or mixed, tangible or intangible, any pledge or hypothecation thereof, any deposit arrangement, priority, conditional sale agreement, other title retention agreement, capital lease or other security arrangement of any kind and, in respect of any securities, includes an adverse claim (other than those arising hereunder and those attributable to the actions of the purchasers thereof), and the Issuer shall so represent and warrant to the purchasers thereof, and further represents and warrants to such purchasers that such New Shares shall be, upon issuance thereof to such purchasers and after payment therefor, duly authorized, validly issued, fully paid and non-assessable. The Subscriber shall deliver to the Issuer the purchase price for the New Shares purchased by the Subscriber by certified cheque, bank draft or wire transfer of immediately available funds or in such other medium and manner as agreed between the Issuer and the Subscriber. Each party to the purchase and sale of New Shares shall take all such other actions as may be reasonably necessary to consummate the purchase and sale, including entering into such additional agreements as may be necessary or appropriate.
(i) Notwithstanding the foregoing, the pre-emptive right provided to the Subscriber in this subsection 9.2 shall not apply in the event of an issuance of Shares in connection with:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, incentive securities to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission purchase or otherwise acquire Shares pursuant to Rule 424 under an equity incentive plan and the Securities Act as in issuance of Shares on the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter exercise, conversion or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.settlement thereof;
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of any Shares upon the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements exercise or conversion of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees), any securities currently outstanding;
(iii) the qualification issuance of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000)Shares in a share dividend, capital reorganization or similar transaction where all holders of Shares are treated in an equivalent manner;
(iv) the printing and delivery issuance of Shares in lieu of services to the Underwriters of reasonable quantities any director, officer, employee or consultant, provided that such issuance shall not exceed 2% of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package issued and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not outstanding Shares in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits12 month period.
(viij) During the period from the date of Notwithstanding any provision in this Underwriting Agreement to the date that is five days after the Closing DateAgreement, the Issuer will not, without the prior written consent pre-emptive right provided in this Section 9.2 shall expire and be of the Representatives, offer, sell no force or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb) of this Underwriting Agreement is conditioned effect upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actionsSubscriber holding less than 5,000,000 Shares.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 2 contracts
Samples: Subscription Agreement (Grown Rogue International Inc.), Subscription Agreement
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or preventing the use of the Registration Statement, or the institution of any proceeding therefor of which the Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 and Rule 163B under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Securitization Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d3(e) above. The Issuer will advise the Underwriters promptly in writing when any supplement to the Pricing Package, the Final Prospectus or any amendment to the Final Prospectus has been filed or distributed.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, certain reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC Indiana Commission advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), and (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb9(w) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Issuer Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE SIGECO will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxx Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE SIGECO and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC Indiana Commission pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine semi-annual, interim or non-routine quarterly True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 2 contracts
Samples: Underwriting Agreement (SIGECO Securitization I, LLC), Underwriting Agreement (SIGECO Securitization I, LLC)
Covenants of the Issuer. The Issuer covenants and agrees for the benefit of Ambac as follows:
(a) it will comply with the several Underwriters undertakings and covenants set out in the Finance Documents to which it is a party including without limitation in Clause 4 of the Subscription Agreement as if such covenants were incorporated mutatis mutandis into this Agreement;
(b) it will forthwith notify Ambac of anything which has or may reasonably be expected to have rendered untrue or incorrect in any respect any of the representations and warranties in Clause 2.1 of this Agreement and which is material in the context of the issue and offering of the Bonds and of the transactions contemplated by the Finance Documents or the issue of the Financial Guarantee;
(c) it will provide Ambac with any information, notices, including, inter alia, management accounts (in such form as they are produced by the Issuer), audited financial statements and other financial information promptly on request after the same become available;
(d) subject to Applicable Requirements, that the duties and obligations of the Issuer herein shall continue in full force and effect until all of its obligations under the Finance Documents have been fully and irrevocably discharged, notwithstanding payment by the Issuer of all amounts due in respect of the Bonds;
(e) that, prior to the Trustee presenting a Notice of Demand to Ambac, the Issuer will have utilised all other financial resources available to it for the purposes of paying interest and/or principal and/or any other sums due to the Bondholders of the relevant Bonds;
(f) subject to Applicable Requirements, it will, upon reasonable prior notice by Ambac make appropriate management personnel available for a meeting (whether conducted over the telephone or otherwise) with Ambac at a mutually acceptable time and place to discuss the Issuer's operational and financial performance over the preceding financial year and its financial plans for the next three years;
(g) subject to Applicable Requirements, it will, as soon as reasonably practicable after request by Ambac, provide appropriate personnel for a meeting (whether conducted over the telephone or otherwise) with Ambac at a mutually acceptable time and place if there occurs a significant change in the financial position of the Issuer or any Subsidiary which is material to the Issuer as shown in its most recent financial statements or in any report produced by OFGEM concerning the Issuer or any of its Subsidiaries;
(h) in consideration for Ambac's issuance of the Financial Guarantee, it will, on the terms and subject to the conditions of this Agreement:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) procure the preparation and filing by it of the Registration Statementpayment, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, of any information concerning Guarantee Fees due and payable to Ambac in accordance with the Issuer as the Representatives may reasonably request.Guarantee Fee Letter and this Agreement;
(xiij) So long as promptly pay to Ambac, all and any sums and fees due and payable to Ambac under the Bonds are rated Finance Documents including, for the avoidance of doubt, (if applicable) the amount equal to the loss, liability or cost which Ambac determines will be or has been (directly or indirectly) suffered for or on account of any Tax by Ambac (except any Rating AgencyTax by reference to the net income received or receivable by Ambac) or in respect of, or applicable to, the Issuer will comply with payment of such sums and fees, as provided for in the 17g-5 Representations, other than Finance Documents; and
(xk) any noncompliance of the 17g-5 Representations that would not have a material adverse effect indemnify and reimburse Ambac on the rating terms of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereofthis Agreement.
Appears in 2 contracts
Samples: Reimbursement and Indemnity Agreement, Reimbursement and Indemnity Agreement (Midamerican Energy Holdings Co /New/)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or preventing the use of the Registration Statement, or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 and Rule 163B under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above. The Issuer will advise the Underwriters promptly in writing when any supplement to the Pricing Package, the Final Prospectus or any amendment to the Final Prospectus has been filed or distributed.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE PG&E will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE PG&E (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb9(t) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE PG&E will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx Norton Xxxx Xxxxxxxxx US LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE PG&E and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 2 contracts
Samples: Underwriting Agreement (PACIFIC GAS & ELECTRIC Co), Underwriting Agreement (PG&E Recovery Funding LLC)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) : If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters (as defined below) a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Series A Transition Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s 's reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or of, the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer willwill promptly notify the Representatives of such event and, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s 's expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE EGSI will, except as herein provided, pay or cause to be paid paid, all reasonable costs and expenses of the Issuer, the Indenture Trustee and the Underwriters incident to the performance of the obligations hereunder, including, without limiting the generality of the foregoing, (A) all costs, taxes and expenses incident to the issue and delivery of the Bonds to the Underwriters, (except transfer taxesB) in connection with (i) all costs and expenses incident to the preparation preparation, printing, reproduction and filing by it distribution of the Registration StatementStatement as originally filed with the Commission and each amendment or supplement thereto, the Pricing Prospectus (including any amendments and supplements thereto), the Final Prospectus (including any amendments and supplements thereto) ), and any Issuer Free Writing Prospectuses, (iiC) all reasonable fees, disbursements and expenses of (1) the issuance Issuer's counsel, (2) EGSI's counsel, (3) the Indenture Trustee's counsel, (4) the Underwriters' counsel, (5) the Issuer's accountants and delivery (6) EGSI's accountants, (D) all fees charged by the Rating Agencies in connection with the rating of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees)Bonds, (iiiE) all fees of DTC in connection with the book-entry registration of the Bonds, (F) all costs and expenses incurred in connection with the qualification of the Bonds for sale under blue-sky the laws of such jurisdictions in the United States as the Representatives may designate, together with costs and expenses in connection with any filing with the National Association of Securities Dealers with respect with the transactions contemplated hereby (including counsel fees not to exceed $15,00010,000), and (ivG) the and all costs and expenses of printing and delivery distributing all of the documents in connection the Bonds. The Issuer will cause the Pricing Prospectus and the Final Prospectus to be filed with the Commission pursuant to Rule 424 as soon as practicable and advise the Underwriters of reasonable quantities any stop order suspending the effectiveness of the Registration Statement and, except as provided or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer has complied and will comply with Rule 433 under the Securities Act in Section 8(a)(iv) hereof, connection with the offering of the Pricing Package and Final ProspectusBonds. If the obligation sale of the Underwriters Bonds provided for herein is not consummated because any condition set forth in Section 9 hereof is not satisfied, because of any termination pursuant to purchase Section 12 hereof or because of any refusal, inability or failure on the Bonds terminates in accordance with the provisions part of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 EGSI or 12 hereof, the Issuer to perform any agreement herein or SCE comply with any provision hereof other than by reason of a default (iincluding under Section 7) by any of the Underwriters, EGSI or the Issuer will reimburse the Underwriters upon demand for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred by them in contemplation connection with the proposed purchase and sale of the performance of this Underwriting AgreementBonds. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) . During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) . To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb9(dd) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) . For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s 's obligations under applicable law, make available on the website associated with the Issuer’s parent's parent or affiliate, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s 's obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that , and the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic DocumentsCommission. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s 's obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parentabove, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s 's obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) . The Issuer and SCE will not file any amendment furnish to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Representatives and Counsel for the Underwriters”, without charge, copies of the Registration Statement (including exhibits thereto), shall reasonably object by written notice to SCE and as many copies of the Pricing Prospectus and the Issuer.
(xi) Final Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s 's website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s 's website), (B) upon request, a copy of any filings with the CPUC PUCT pursuant to the Financing Act and the Financing Order including, but not limited to, any issuance advice letter Issuance Advice Letter or any routine annual or non-routine more frequent True-Up Adjustment filingsAdvice Letters, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 2 contracts
Samples: Underwriting Agreement (Entergy Gulf States Reconstruction Funding I, LLC), Underwriting Agreement (Entergy Gulf States Reconstruction Funding I, LLC)
Covenants of the Issuer. As of the Issue Date, Issuer represents, covenants and warrants for the benefit of Xxxxxx as follows:
(a) Issuer is a public body corporate and politic duly organized and existing under the constitution and laws of the State with full power and authority to issue the Bond, and to enter into this Agreement and the transactions contemplated hereby and to perform all of its obligations thereunder.
(b) Issuer will do or cause to be done all things necessary to preserve and keep in full force and effect its existence as a public body corporate and politic. To the extent Issuer should merge with another entity under the laws of the State, Issuer agrees that as a condition to such merger it will require that the remaining or resulting entity shall be assigned Issuer's rights and shall assume Issuer's obligations under the Bond and this Agreement.
(c) Issuer has been duly authorized to issue the Bond and to execute and deliver this Agreement by proper action by its governing body, or by other appropriate official approval, and all requirements have been met and procedures have occurred in order to ensure the validity and enforceability of the Bond and this Agreement. On the Issue Date, Issuer shall cause to be delivered an opinion of Bond Counsel as to the due authorization, validity and enforceability of the Bond, and the federal and state tax exemption of interest on the Bond, with such changes therein as may be approved by Xxxxxx.
(d) Issuer will provide Lender with current financial statements and budgets and such financial or other information of Issuer as Lender may request, in such form and containing such information as may be requested by Xxxxxx. Within 180 days of the close of each fiscal year of the Issuer, the Issuer shall provide Lender the complete audited financial statements of the Issuer.
(e) The Issuer will comply with all applicable provisions of the Internal Revenue Code of 1986, as amended (the “Code”), including, without limitation, Sections 103 and 148 thereof, and the regulations of the Treasury Department thereunder, from time to time proposed or in effect, in order to maintain the excludability from gross income for federal income tax purposes of the interest on the Bond. The Issuer covenants and agrees with that it will use the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy proceeds of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act Bond as soon as practicable and will advise with all reasonable dispatch for the Underwriters of any stop order suspending purpose for which the effectiveness Bond has been issued, and that no part of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering proceeds of the Bonds.
(iv) IfBond shall be invested in any securities, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel obligations or other investments except for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where temporary period pending such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer willuse nor used, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose oftime, directly or indirectly, in a manner which, if such use had been reasonably anticipated on the date of issuance of the Bond, would have caused the Bond to be or announce become "arbitrage bonds" within the offering ofmeaning of Section 103(b)(2) or Section 148 of the Code and the regulations of the Treasury Department thereunder proposed or in effect at the time of such use and applicable to obligations issued on the date of issuance of the Bond. In furtherance of the covenant contained in the preceding sentence, any asset-backed securities (other than the Bonds)Issuer agrees to comply with the tax compliance certificate delivered on the Issue Date and the provisions of Section 141 through 150 of the Code, as applicable.
(viiif) To The Issuer designates the extent, if any, that any rating necessary to satisfy Bond as a “qualified tax-exempt obligation” for the condition set forth in purpose of Section 9(bb265(b)(3) of this Underwriting Agreement is conditioned upon the furnishing Code. The Issuer represents and covenants as follows:
i. The Issuer will in no event designate more than $10,000,000 of documents or obligations as qualified tax- exempt obligations in calendar year 2022, including the taking Bond, for the purpose of other actions by such Section 265(b)(3);
ii. The Issuer, all its “subordinate entities,” within the meaning of such Section 265(b)(3), and all entities which issue tax-exempt obligations on behalf of the Issuer on or after and its subordinate entities have not authorized, in the Closing Dateaggregate, more than $10,000,000 of tax- exempt obligations to be issued in calendar year 2022 (not including “private activity bonds,” within the Issuer shall furnish such documents and take such meaning of Section 141 of the Code, other actions.than “qualified 501(c)(3) bonds,” within the meaning of Section 145 of the Code), including the Bond;
(ix) For a period from iii. Barring circumstances unforeseen as of the date of this Underwriting Agreement until the retirement delivery of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstandingBond, the Issuer will furnish to not issue tax-exempt obligations itself or approve the Representativesissuance of tax-exempt obligations of any of such other entities if the issuance of such tax-exempt obligations would, if and to the extent not posted on XXXXX or when aggregated with all other tax-exempt obligations theretofore issued by the Issuer or its affiliate’s websiteand such other entities in calendar year 2022, (A) as soon as available, a copy of each report of result in the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders and such other entities having issued a total of more than $10,000,000 of tax-exempt obligations in calendar year 2020 (to the extent such reports are not publicly available on the Commission’s websiteincluding private activity bonds other than qualified 50l(c)(3) bonds), (B) upon request, a copy of any filings with including the CPUC pursuant Bond; and
iv. The Issuer has no reason to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning believe that the Issuer as and such other entities will issue tax-exempt obligations in calendar year 2022 in an aggregate amount that will exceed such $10,000,000 limit; provided, however, that if the Representatives may reasonably requestIssuer receives an opinion of nationally recognized bond counsel that compliance with any covenant set forth in (i) or (iii) above is not required for the Bond to be a qualified tax-exempt obligation, the Issuer need not comply with such covenant.
(xiig) So long as The issuance of the Bonds are rated Bond and the execution, delivery and performance of this Agreement and compliance with the provisions thereof by Issuer does not conflict with or result in a violation or breach or constitute a default under, any resolution, bond, agreement, indenture, mortgage, note, lease or other instrument to which Issuer is a party or by which it is bound by any Rating Agencylaw or any rule, regulation, order or decree of any court, governmental agency or body having jurisdiction over Issuer or any of its activities or properties resulting in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any property or assets of Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereofto which it is subject.
Appears in 2 contracts
Samples: Bond Purchase and Loan Agreement, Bond Purchase and Loan Agreement
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act (“Rule 424”) as in the opinion of Counsel for the Underwriters (as defined below) a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Transition Property or of which the Issuer will upon request promptly deliver to shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters should be set forth in a supplement to, or an amendment of, the Pricing Prospectus or the Final Prospectus in order to make the Pricing Prospectus or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Prospectus or the Final Prospectus by either (A) preparing and Counsel furnishing to the Underwriters at the Issuer’s expense a conformed copy reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Prospectus or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Registration StatementExchange Act, certified by an officer which will supplement or amend the Pricing Prospectus or the Final Prospectus so that, as supplemented or amended, it will not 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 Issuer circumstances when the Pricing Prospectus or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be in satisfied pursuant to Rule 172 under the form as originally filed Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and all amendments theretofurnishing any such amendment or supplement.
(ii) The Issuer will deliver or ETI will, except as herein provided, pay or cause to be paid, all reasonable costs and expenses of the Issuer, the Indenture Trustee and the Underwriters incident to the performance of the obligations hereunder, including, without limiting the generality of the foregoing, (A) all costs, taxes and expenses incident to the issue and delivery of the Bonds to the Underwriters; (B) all costs and expenses incident to the preparation, as soon as practicable after the date hereofprinting, as many copies reproduction and distribution of the Registration Statement as originally filed with the Commission and each amendment or supplement thereto, the Pricing Prospectus Package (including any amendments and supplements thereto), the Final Prospectus (including any amendments and supplements thereto), and any Issuer Free Writing Prospectuses; (C) all reasonable fees, disbursements and expenses of (1) the Issuer’s counsel, (2) ETI’s counsel, (3) the Indenture Trustee’s counsel, (4) Counsel for the Underwriters, (5) the Issuer’s accountants and (6) ETI’s accountants; (D) all fees charged by the Rating Agencies in connection with the rating of the Bonds; (E) all fees of DTC in connection with the book-entry registration of the Bonds; (F) all costs and expenses incurred in connection with the qualification of the Bonds for sale under the laws of such jurisdictions in the United States as they the Representatives may reasonably requestdesignate, together with costs and expenses in connection with any filing with FINRA with respect to the transactions contemplated hereby (including counsel fees not to exceed $10,000); and (G) all costs and expenses of printing and distributing all of the documents in connection the Bonds.
(iii) The Issuer will cause or has caused the Pricing Prospectus and the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period If the sale of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds provided for herein is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not consummated because any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be condition set forth in a supplement toSection 9 hereof is not satisfied, or an amendment because of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing any termination pursuant to Section 13 12 hereof or Section 15 because of any refusal, inability or failure on the Exchange Act, which will supplement or amend the Pricing Package part of ETI or the Final Prospectus so that, as supplemented Issuer to perform any agreement herein or amended, it will not contain comply with any untrue statement provision hereof other than by reason of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser default (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of Section 7 hereof) by any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment ETI or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (ix) will reimburse the Underwriters upon demand for the reasonable fees and disbursements of Counsel for the Underwriters, and (iiy) will reimburse the Underwriters for their reasonable out-of-pocket expensesexpenses (other than fees and disbursements of Counsel for the Underwriters covered in clause (x) above), such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred by them in contemplation connection with the proposed purchase and sale of the performance of this Underwriting AgreementBonds. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(viiv) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viiivi) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb9(dd) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer prior to, on or after the Closing Date, the Issuer shall furnish such documents and take such other actionsactions to the extent reasonably requested by any Rating Agency.
(ixvii) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall alsoshall, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on Commission, the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(xviii) The Issuer and SCE will not file any amendment furnish to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Representatives and Counsel for the Underwriters”, without charge, copies of the Registration Statement (including exhibits thereto), shall reasonably object by written notice to SCE and as many copies of the Pricing Prospectus and the IssuerFinal Prospectus and any amendment or supplement thereto as the Representatives may reasonably request.
(xiix) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed furnished to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC PUCT pursuant to the Financing Act and the Financing Order including, but not limited to, any issuance advice letter (“Issuance Advice Letter”) filed with the PUCT pursuant to the Financing Order with respect to the Bonds or any routine semi-annual or nonmore frequent true-routine True-Up Adjustment filingsup request letters, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(x) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue sky laws of such jurisdictions as the Representatives may designate and will maintain such qualifications in effect so long as required for the distribution of the Bonds; provided, that the Issuer shall not be required to qualify as a foreign limited liability company or foreign corporation or dealer in securities, file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(xi) The Issuer will not file any amendment to the Registration Statement, any amendment or supplement to the Final Prospectus or any amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters or to which Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, which is acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to the Issuer and ETI.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (xA) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the Bonds or the rating of the Bonds or the Bonds or (yB) any noncompliance arising from the breach by an Underwriter of the representations and representations, warranties and covenants set forth in Section 13 hereof.
Appears in 2 contracts
Samples: Underwriting Agreement (Entergy Texas, Inc.), Underwriting Agreement (Entergy Texas, Inc.)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives Representative and Counsel to for the Underwriters (as defined below) a conformed copy of the Registration Statement, certified by an officer or manager of the Issuer to be in the form as originally filed filed, including all exhibits thereto and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and the Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order issued by the Commission suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which the Issuer shall have received notice. The Issuer will use its every reasonable best efforts effort to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereofthereof by the Commission. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Securitization Property or of which the Issuer shall be advised in writing by the Representatives Representative shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, to or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus Prospectus, as applicable, by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements of or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided provided, that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement; provided, further, that Counsel for the Underwriters shall not have objected to such amendment or supplement pursuant to Section 8(a)(x) or Section 8(b)(x). The Issuer will also fulfill its obligations set out in Section 3(d3(e) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives Representative may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, jurisdiction or to meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE Consumers, on behalf of the Issuer, will, except as herein provided, pay or cause to be paid all reasonable expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, the Pricing Prospectus and the Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, including reasonable documented fees and out-of-pocket disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC MPSC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,0005,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse (or cause to be reimbursed) the Underwriters for the reasonable documented fees and out-of-pocket disbursements of Counsel for the Underwriters, Underwriters and (ii) will reimburse or cause to be reimbursed the Underwriters for their reasonable documented out-of-pocket expensesexpenses (other than fees of counsel covered in clause (i) above), such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the RepresentativesRepresentative, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb9(t) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actionsactions to the extent reasonably requested by any Rating Agency.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the CommissionCommission and, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parentIssuer or its affiliates, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided provided, that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and not prohibited by the terms of the Basic Issuer Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the any periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parentIssuer or its affiliates, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE Consumers will not file any amendment to the Registration Statement or Statement, any amendment or supplement to the Final Prospectus or any amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, Underwriters or to which Hunton Xxxxxxx Hxxxxx Axxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE the Issuer and the IssuerConsumers within two business days of notification thereof.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the RepresentativesRepresentative, if and to the extent not posted on XXXXX or the Issuer or any of its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed furnished to the Bondholders bondholders (in each case to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC MPSC pursuant to the Financing Order including, but not limited toto any annual, any issuance advice letter semi-annual or any routine or nonmore frequent true-routine True-Up Adjustment up adjustment filings, and (C) from time to time, any information (other than confidential or proprietary information) concerning the Issuer as the Representatives Representative may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and representations, warranties and covenants set forth in Section 13 hereof.
Appears in 2 contracts
Samples: Underwriting Agreement (Consumers 2023 Securitization Funding LLC), Underwriting Agreement (Consumers 2023 Securitization Funding LLC)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or preventing the use of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 and Rule 163B under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters (as defined below) a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Storm Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d3(e) above. The Issuer will advise the Underwriters promptly in writing when any supplement to the Pricing Package, the Final Prospectus or any amendment to the Final Prospectus has been filed or distributed.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE SWEPCO will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC Louisiana Commission advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE SWEPCO (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb9(t) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE SWEPCO will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxx Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE SWEPCO and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC Louisiana Commission pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 2 contracts
Samples: Underwriting Agreement (SWEPCO Storm Recovery Funding LLC), Underwriting Agreement (SWEPCO Storm Recovery Funding LLC)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver use its best efforts to the Representatives and Counsel to the Underwriters a conformed copy of cause the Registration Statement, certified by an officer if not effective at the Execution Time, and any amendment thereto, to become effective. Prior to the termination of the Issuer to be in offering of the form as originally filed and all amendments thereto.
(ii) The Transition Bonds, the Issuer will deliver not file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the UnderwritersBasic Prospectus unless the Issuer has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424 under 424(b) within the Securities Act as soon as practicable time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Issuer will promptly advise the Underwriters Representative (A) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective, (B) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (C) when, prior to termination of the offering of the Transition Bonds, any amendment to the Registration Statement shall have been filed or become effective, (D) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any additional information, (E) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding therefor for that purpose, (F) of which the receipt by the Issuer shall have received noticeof any notification with respect to the suspension of the qualification of the Transition Bonds for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (G) of the happening of any event during the period mentioned in subparagraph (ii) below. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(ivii) If, during such period at any time when a prospectus relating to the Transition Bonds is required to be delivered under the Act, any event occurs as a result of time (not exceeding nine months) after which the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as then supplemented or amended, it will not contain would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances when under which they were made not misleading, or if it shall be necessary to amend the Pricing Package Registration Statement or supplement the Final Prospectus is delivered to a purchaser comply with the Act or the Exchange Act or the respective rules thereunder, the Issuer promptly will (including i) prepare and file with the Commission an amendment or supplement which will correct such statement or omission or effect such compliance and (ii) supply any supplemented Final Prospectus to you in circumstances where such requirement quantities as you may be satisfied pursuant reasonably request.
(iii) As soon as practicable but no later than 12 months after the Closing Date, the Issuer will make generally available to the Transition Bondholders and to the Representative an earnings statement or statements of the Issuer that will satisfy the provisions of Section 11(a) of the Act and Rule 172 158 under the Securities Act), not misleading; provided that should such event relate solely .
(iv) The Issuer will furnish to the activities of any of Representative and counsel for the Underwriters, then such Underwriters without charge, copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of any Preliminary Final Prospectus and the Final Prospectus and any supplement thereto as the Representative may reasonably request. The Issuer shall assume furnish or cause to be furnished to the expense Representative copies of preparing and furnishing any such amendment or supplementall reports required by Rule 463 under the Act. The Issuer will also fulfill its obligations set out in Section 3(d) abovepay the expenses of printing or other production of all documents relating to the offering.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying arrange for the qualification of the Transition Bonds for offer and sale under the blue-sky laws of such jurisdictions as the states Representative may designate, will maintain such qualifications in effect so long as required for the distribution of the United States as Transition Bonds and will arrange for the Representatives may designatedetermination of the legality of the Transition Bonds for purchase by institutional investors; provided that in no event shall the Issuer shall not be required obligated to qualify as a foreign limited liability company to do business in any jurisdiction where it is not now so qualified or dealer in securities, to file take any consents action that would subject it to service of process under the laws of in suits in any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensomejurisdiction where it is not now so subject.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) Until the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages business date set forth on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing DateSchedule I hereto, the Issuer will not, without the prior written consent of the RepresentativesRepresentative, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Transition Bonds).
(vii) For a period from the date of this Underwriting Agreement until the retirement of the Transition Bonds, or until such time as the Underwriters shall cease to maintain a secondary market in the Transition Bonds, whichever occurs first, the Issuer will deliver to the Representative the annual statements of compliance and the annual independent auditor's servicing reports furnished to the Issuer or the Trustee pursuant to the Servicing Agreement or the Indenture, as applicable, as soon as such statements and reports are furnished to the Issuer, Issuer or the Trustee.
(viii) So long as any of the Transition Bonds are outstanding, the Issuer will furnish to the Representative, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act, or mailed to Transition Bondholders, (B) a copy of any filings with the BPU pursuant to the Competition Act and the Financing Order including, but not limited to, any annual or more frequent Transition Bond Charge Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representative may reasonably request.
(ix) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb6(m) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 2 contracts
Samples: Underwriting Agreement (Pse&g Transition Funding LLC), Underwriting Agreement (Pse&g Transition Funding LLC)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to for the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) , including all consents and exhibits filed therewith. The Issuer will deliver to each of the Underwriters, as soon as practicable after the date hereof, such number of copies of any preliminary prospectus, the Final Prospectus, the Registration Statement, and all amendments of and supplements to such documents, if any, as many you may reasonably request. Prior to 10:00 A.M., New York City time, on the second business day next succeeding the date of this Agreement and from time to time thereafter, the Issuer will furnish the Underwriters with copies of the Pricing Prospectus and Final Prospectus in New York City in such quantities as they you may reasonably request.
(iiiii) The Issuer will cause or has caused the (A) If at any time when a Final Prospectus or Pricing Package (or, in lieu thereof, the notice referred to be filed with the Commission pursuant to in Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv173(a) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act)) is required to be delivered under the Securities Act, any event relating to or affecting the Issuer, the Bonds or the Recovery Property or shall have occurred as a result of which the Issuer shall be advised in writing by Pricing Package (prior to the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment availability of the Pricing Package Final Prospectus) or the Final Prospectus as then amended or supplemented would, in order to make the Pricing Package reasonable judgment of the Representatives or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act)Issuer, the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or include an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when existing at the time of delivery of such Pricing Package or the Final Prospectus is delivered (or, in lieu thereof, the notice referred to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 173(a) under the Securities Act), not misleading; provided (B) if to comply with the Securities Act, the Exchange Act or the related rules and regulations (including, without limitation, Section 11(a) or 12(a)(2) under the Securities Act and Rule 10b-5 under the Exchange Act) it shall be necessary at any time to amend or supplement the Pricing Package, the Final Prospectus or the Registration Statement, or to file any document incorporated by reference in the Registration Statement, the Pricing Package or the Final Prospectus or in any amendment thereof or supplement thereto; or (C) if an event or development has occurred or occurs, the result of which is that should such event relate solely Issuer Free Writing Prospectus conflicts or would conflict with the information then contained in the Registration Statement or includes or would include an untrue statement of a material fact or, when considered together with the Pricing Package, omits 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, then, in each case of (A), (B) or (C), the Issuer will notify the Representatives promptly and prepare and file with the Commission an appropriate amendment, supplement or document (the use of which has been consented to by the Representatives) that will correct such statement or omission or effect such compliance, and will use its best efforts to have any amendment to the activities of any of Registration Statement declared effective as soon as possible.
(iii) The Issuer shall prepare the UnderwritersFinal Prospectus in a form approved by the Representatives and file such Final Prospectus pursuant to, then such Underwriters shall assume and within the expense of preparing time period specified in, Rule 424(b) and furnishing any such amendment or supplementRule 430A under the Securities Act. The Issuer will also fulfill not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without reasonable prior notice to the Underwriters or to which Pxxx, Weiss, Rifkind, Wxxxxxx & Gxxxxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to the Issuer within two business days after notification thereof. The Issuer shall notify the Underwriters promptly (and, if requested by the Representatives, confirm such notice in writing) (i) when the Registration Statement and any amendments thereto become effective, (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (iii) of the Issuer’s intention to file, or prepare any supplement or amendment to, the Registration Statement, any preliminary prospectus, the Final Prospectus or the Pricing Package, (iv) of the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Final Prospectus, including but not limited to Rule 462(b) under the Securities Act, (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, or suspending the use of any preliminary prospectus, the Final Prospectus or the Pricing Package or, in each case, of the initiation or threatening of any proceedings therefore, (vi) of the receipt of any comments from the Commission, and (vii) of the receipt by the Issuer of any notification with respect to the suspension of the qualification of the Bonds for sale in any state or jurisdiction or the initiation or threatening of any proceeding for that purpose. If the Commission shall propose or enter a stop order at any time, the Issuer will use its obligations set out in Section 3(d) abovereasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain the lifting of such order as soon as possible.
(viv) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(viv) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, the Pricing Prospectus Package and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 6 hereof (including, without limitation, reasonable documented fees and out-of-pocket disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC NCUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,0005,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 9 or 10 or 12 hereof, the Issuer or SCE (ix) will reimburse (or cause to be reimbursed) the Underwriters for the reasonable documented fees and out-of-pocket disbursements of Counsel for the Underwriters, and (iiy) will reimburse or cause to be reimbursed the Underwriters for their reasonable documented out-of-pocket expensesexpenses (other than fees of counsel covered in clause (x) above), such out-of-pocket expenses in an aggregate amount not exceeding $200,000, 200,000 incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vi) The Issuer shall use all commercially reasonable efforts to cause the conditions precedent set forth in Section 9 hereof to be fulfilled at or prior to the Closing Date.
(vii) During For a period commencing on the period from date hereof and ending on the 15th day after the date of this Underwriting Agreement to the date that is five days after the Closing DateFinal Prospectus, the Issuer will notagrees not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition by any person at any time in the future of) any storm recovery bonds of the Issuer thereof substantially similar to the Bonds (“Similar Debt Securities”) or securities convertible into or exchangeable for Similar Debt Securities, sell or grant options, rights or warrants with respect to Similar Debt Securities or securities convertible into or exchangeable for Similar Debt Securities, (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of Similar Debt Securities whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Similar Debt Securities or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of Similar Debt Securities or securities convertible, exercisable or exchangeable into Similar Debt Securities or (iv) publicly announce an offering of any Similar Debt Securities or securities convertible or exchangeable into Similar Debt Securities, in each case without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb9(n) of this Underwriting Agreement hereof is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actionsactions to the extent reasonably requested by any Rating Agency.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Issuer Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the any periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders bondholders (in each case to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC NCUC pursuant to the Financing Order including, but not limited to, to any issuance advice letter or any routine annual, semi-annual or nonmore frequent true-routine True-Up Adjustment up adjustment filings, and (C) from time to time, any information (other than confidential or proprietary information) concerning the Issuer as the Representatives may reasonably request.
(xiixi) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 15 hereof.
(xii) If the Issuer elects to rely upon Rule 462(b) of the Securities Act, the Issuer shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462 by 10:00 p.m. (New York City time), on the date of this Agreement, and the Issuer shall at the time of filing either pay to the Commission the filing fee for the Rule 462 Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Securities Act.
(xiii) The Issuer will not take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Bonds and will not take any action prohibited by Regulation M under the Exchange Act in connection with the distribution of the Bonds contemplated hereby.
Appears in 2 contracts
Samples: Underwriting Agreement (Duke Energy Progress NC Storm Funding LLC), Underwriting Agreement (Duke Energy Carolinas NC Storm Funding LLC)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives Representative and Counsel to for the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities 1933 Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities 1933 Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities 1933 Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities 1933 Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Environmental Control Property or of which the Issuer shall be advised in writing by the Representatives Representative shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities 1933 Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange 1934 Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities 1933 Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives Representative may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE Wisconsin Electric will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, trustee and rating agency and CPUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE Wisconsin Electric (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the RepresentativesRepresentative, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb9(z) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parentIssuer or its affiliates, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange 1934 Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic DocumentsIndenture, the Bonds, the Sale Agreement, the Servicing Agreement and the Administrative Agreement. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parentIssuer or its affiliates, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE Wisconsin Electric will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE Wisconsin Electric and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the RepresentativesRepresentative, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC PSCW pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives Representative may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not reasonably be expected to have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 14 hereof.
Appears in 2 contracts
Samples: Underwriting Agreement (WEPCo Environmental Trust Finance I, LLC), Underwriting Agreement (WEPCo Environmental Trust Finance I, LLC)
Covenants of the Issuer. The Issuer hereby covenants and agrees with that for so long as any of the several Underwriters thatSecurities shall remain Outstanding:
(a) it will duly and punctually pay the principal of and any interest on the Securities in accordance with the terms hereof;
(b) it will do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charters and statutory) and franchises;
(c) it will cause all material properties used or useful in the conduct of its business to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the reasonable judgment of Issuer may be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times; PROVIDED, HOWEVER, that the foregoing shall not prevent the Issuer from discontinuing the operation or maintenance of any such properties if such discontinuance is, in the reasonable judgment of Issuer, desirable in the conduct of its business or the business of any of its subsidiaries, and not disadvantageous in any material respect to the holders of Securities; and, PROVIDED, FURTHER, that the failure to comply herewith shall not be deemed a breach hereof unless such failure would have a material adverse effect on the business, financial condition or results of operations of Issuer and its subsidiaries, taken as a whole (a "Material Adverse Effect");
(d) it will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (i) The all taxes, assessments and governmental charges levied or imposed upon the Issuer will or upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy income, profits or property of the Registration StatementIssuer, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to all lawful claims for labor, materials and supplies which, if unpaid, might by law become a lien upon the Underwriters, as soon as practicable after the date hereof, as many copies property of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order andIssuer; PROVIDED, if issuedHOWEVER, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company pay or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings; and, PROVIDED, FURTHER, that the failure to comply herewith shall not be deemed a breach if it would not have a Material Adverse Effect;
(e) it shall furnish to each Registered Holder of Securities a copy of all expenses and taxes (except transfer taxes) in connection with (i) documents it is required to send to its shareholders at the preparation and filing by it of time the Registration Statementsame are sent to shareholders, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees annual reports and disbursements proxy statements;
(f) as soon as it becomes aware of Counsel the same, it shall give written notice to each Registered Holder of Securities of any event or occurrence which by itself or with notice or lapse of time or both would entitle the holders of the Securities to declare the principal of and any interest on the Securities immediately due and payable pursuant to Section 16 hereof;
(g) it will promptly obtain and maintain from time to time all authorizations, permits, approvals, consents, licenses and exemptions which are required under any applicable law or regulation to enable it to perform all of its payment, conversion and other material obligations under the Securities or which may be required for the Underwriters validity or enforceability of the Securities; provided, however, that the failure to obtain and maintain such authorizations, permits, approvals, consents, licenses and exemptions as to material obligations other than payment and conversion shall not constitute a breach of this provision unless such non-compliance materially adversely affects the Issuer's ability to comply with its obligations under the Securities;
(h) it will duly and punctually comply with and observe all statutes now or hereafter in force and all trusteeordinances, rating agency regulation and CPUC advisor fees)by-laws thereunder and all requirements and orders of any government or other public authority; PROVIDED, HOWEVER, that any non-compliance with any such statute, ordinance, regulation or by-law shall not constitute a breach of this provision unless such non-compliance materially adversely affects the Issuer's ability to comply with its obligations under the Securities;
(iiii) the qualification it shall permit any representative of any Registered Holder or Holders of at least $250,000 aggregate principal amount of the Bonds under blue-sky laws (including counsel fees not Securities to exceed $15,000)make inspections of, (iv) and to report on, the printing property of, and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder business operations being carried out of an Underwriter default), 9, 10 or 12 hereofby, the Issuer or SCE any of its subsidiaries;
(j) it shall maintain and keep in force with reputable insurers and in adequate amounts, property, casualty, third party liability, business interruption and all such other insurances as would prudently be effected and maintained in the case of a company carrying on a business similar to that of the Issuer;
(k) it shall not:
(i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwritersdeclare or pay any cash dividends on its Common Stock or purchase, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, redeem or otherwise dispose of, directly acquire or indirectly, or announce the offering of, retire for value any asset-backed securities shares of Common Stock (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall alsoIssuer's stock option plan); provided, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, however that during such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long time as any of the Bonds are outstanding, principal or interest remains outstanding under this Debenture the Issuer will furnish to the Representativesmay repurchase, if at any time and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, up to an aggregate of $1,000,000 of its Common Stock; or
(ii) consolidate with or merge into any information concerning other Person, where the Issuer as is not the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agencysurviving corporation, the Issuer will comply or convey, transfer, lease or otherwise dispose of all or substantially all of its assets, except in compliance with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations terms and warranties and covenants conditions set forth in Section 13 hereof12 below.
Appears in 2 contracts
Samples: Subordination Agreement (Williams Controls Inc), Subordination Agreement (Williams Controls Inc)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act (“Rule 424”) as in the opinion of Counsel for the Underwriters (as defined below) a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Investment Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or of, the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer willwill promptly notify the Representatives of such event and, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(viii) The Issuer or SCE ELL will, except as herein provided, pay or cause to be paid paid, all reasonable costs and expenses of the Issuer, the Indenture Trustee and the Underwriters incident to the performance of the obligations hereunder, including, without limiting the generality of the foregoing, (A) all costs, taxes and expenses incident to the issue and delivery of the Bonds to the Underwriters; (except transfer taxesB) in connection with (i) all costs and expenses incident to the preparation preparation, printing, reproduction and filing by it distribution of the Registration StatementStatement as originally filed with the Commission and each amendment or supplement thereto, the Pricing Prospectus (including any amendments and supplements thereto), the Final Prospectus (including any amendments and supplements thereto) ), and any Issuer Free Writing Prospectuses; (C) all reasonable fees, disbursements and expenses of (1) the Issuer’s counsel, (ii2) ELL’s counsel, (3) the issuance and delivery of the Bonds as provided in Section 7 hereof Indenture Trustee’s counsel, (including, without limitation, reasonable fees and disbursements of 4) Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees)Underwriters, (iii5) the Issuer’s accountants and (6) ELL’s accountants; (D) all fees charged by the Rating Agencies in connection with the rating of the Bonds; (E) all fees of DTC in connection with the book-entry registration of the Bonds; (F) all costs and expenses incurred in connection with the qualification of the Bonds for sale under blue-sky the laws of such jurisdictions in the United States as the Representatives may designate, together with costs and expenses in connection with any filing with FINRA with respect to the transactions contemplated hereby (including counsel fees not to exceed $15,00016,000), ; (ivG) the and all costs and expenses of printing and delivery distributing all of the documents in connection with the Bonds; and (H) all LPSC-approved fees, costs and expenses of the LPSC and its advisors and counsel in connection with the issuance of the Bonds.
(iii) The Issuer will cause the Pricing Prospectus and the Final Prospectus to be filed with the Commission pursuant to Rule 424 as soon as practicable and advise the Underwriters of reasonable quantities any stop order suspending the effectiveness of the Registration Statement and, except as or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If the sale of the Bonds provided for herein is not consummated because any condition set forth in Section 8(a)(iv9 hereof is not satisfied, because of any termination pursuant to Section 12 hereof or because of any refusal, inability or failure on the part of ELL or the Issuer to perform any agreement herein or comply with any provision hereof other than by reason of a default (including under Section 7 hereof) hereof, by any of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default)Underwriters, 9, 10 ELL or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters upon demand for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred by them in contemplation connection with the proposed purchase and sale of the performance of this Underwriting AgreementBonds. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(viiv) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viiivi) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb9(aa) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer prior to, on or after the Closing Date, the Issuer shall furnish such documents and take such other actionsactions to the extent reasonably requested by any Rating Agency.
(ixvii) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall alsoshall, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(xviii) The Issuer and SCE will not file any amendment furnish to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Representatives and Counsel for the Underwriters”, without charge, copies of the Registration Statement (including exhibits thereto), shall reasonably object by written notice to SCE and as many copies of the Pricing Prospectus and the IssuerFinal Prospectus and any amendment or supplement thereto as the Representatives may reasonably request.
(xiix) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC LPSC pursuant to the Financing Act and the Financing Order including, but not limited to, any issuance advice letter (“Issuance Advice Letter”) filed with the LPSC pursuant to the Financing Order with respect to the Investment Recovery Bonds or any routine semi-annual or nonmore frequent true-routine True-Up Adjustment filingsup request letters, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xiix) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and representations, warranties and covenants set forth in Section 13 hereof.
Appears in 2 contracts
Samples: Underwriting Agreement (Entergy Louisiana Investment Recovery Funding I, L.L.C.), Underwriting Agreement (Entergy Louisiana Investment Recovery Funding I, L.L.C.)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed filed, including all Incorporated Documents and exhibits and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Phase-In-Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d3(e) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE OPCo will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC PUCO advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE OPCo (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-of pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb9(x) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE OPCo will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx & Xxxxxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE OPCo and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC PUCO pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine annual, semi-annual or non-routine more frequent True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 2 contracts
Samples: Underwriting Agreement (Ohio Phase-in-Recovery Funding LLC), Underwriting Agreement (Ohio Phase-in-Recovery Funding LLC)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(ia) The Issuer will upon request promptly deliver (i) prepare and timely file with the Commission, under Rule 424(b) of the 1933 Act, a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the 1933 Act; (ii) file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the 1933 Act; (iii) not file any amendment to the Registration Statement or supplement to the Prospectus or the Disclosure Package 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 1933 Act;(iv) not prepare, use, authorize, approve, refer to or file any Issuer Free Writing Prospectus, amendment or supplement, whether before or after the time that the Registration Statement becomes effective, of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives and Counsel counsel for the Underwriters shall have reasonably objected in writing;(v) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Issuer with the Commission subsequent to the Underwriters a conformed copy date of the Registration StatementProspectus and for so long as the delivery of a prospectus (or in lieu thereof, certified by an officer the notice referred to in Rule 173(a) under the 1933 Act) is required in connection with the offering or sale of the Issuer to be in the form as originally filed Shares; and all amendments thereto.
(iivi) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many furnish copies of the Pricing Disclosure Package and the Prospectus and Final Prospectus any supplements and amendments thereto in such quantities as they the Representatives may reasonably request.
(iiib) The Issuer has not distributed and without the prior consent of the Representatives, it will cause not distribute any prospectus or has caused other offering material (including, without limitation, any offer relating to the Final Prospectus Shares that would constitute a free writing prospectus and content on the Issuer’s website that may be deemed to be filed a prospectus or other offering material) in connection with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable offering and will advise the Underwriters of any stop order suspending the effectiveness sale of the Registration Statement or Shares, other than the institution of any proceeding therefor materials referred to in Section 1(d). Any such Issuer Free Writing prospectus the use of which has been consented to by the Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent and the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereofRepresentatives is listed on Schedule II(a) or Schedule II(b) hereto. The Issuer has complied and will comply with the requirements of Rule 433 under the Securities 1933 Act in connection with the offering of the Bonds.
(iv) Ifapplicable to any Issuer Free Writing Prospectus, during such period of time (not exceeding nine months) after the Final Prospectus has been filed including timely filing with the Commission pursuant to Rule 424 under or retention where required and legending. The Issuer agrees that if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the Securities Act as information in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the IssuerRegistration Statement, the Bonds Preliminary Prospectus or the Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making would include an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act)then prevailing, not misleading; provided that should such event relate solely , the Issuer will give prompt notice thereof to the activities of any of Representatives and, if requested by the UnderwritersRepresentatives, then will prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document which will correct such Underwriters shall assume the expense of preparing and furnishing any such amendment conflict, statement or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) aboveomission.
(vc) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose oftake, directly or indirectly, any action designed to cause or announce result in, or that has constituted or might reasonably be expected to constitute, the offering of, stabilization or manipulation of the price of any asset-backed securities (other than of the Bonds)Issuer.
(viiid) To The Issuer will advise the extent, if any, that Representatives promptly (i) when the Registration Statement or any rating necessary to satisfy the condition set forth in Section 9(bbpost-effective amendment thereto shall have become effective; (ii) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and when any amendment to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required Registration Statement has been filed or becomes effective; (without regard iii) when any supplement to the number of holders of Bonds Prospectus or any Issuer Free Writing Prospectus or any amendment to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(dProspectus has been filed;(iv) of the Exchange Actreceipt of any comments from the Commission; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with (v) of any request of the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file for any amendment to the Registration Statement or any amendment or supplement to the Final Prospectus or amendment for any additional information; (vi) of the issuance by the Commission of any order suspending the effectiveness of the Registration Statement or supplement preventing or suspending the use of any Preliminary Prospectus or the Prospectus or of the institution or threatening of any proceedings for that purpose; and (vii) of the receipt by the Issuer of any notice with respect to any suspension of the Pricing Package during qualification of the Shares for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Issuer will use reasonable 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 obtain as soon as reasonably possible the withdrawal thereof. As used herein, “Prospectus Delivery Period” means such period when of time after the date of the first bona fide public offering of the Shares as in the opinion of counsel for the Underwriters a prospectus relating to the Bonds Shares is required by law to be delivered (or required to be delivered but for Rule 172 under the Securities Act, without prior notice to 0000 Xxx) in connection with the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any sales of the Bonds are outstanding, the Shares by any Underwriter or dealer. The Issuer will furnish use its best efforts to prevent the Representatives, if issuance of any stop order preventing or suspending the use of the Prospectus and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) obtain as soon as availablepossible the lifting thereof, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably requestif issued.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 2 contracts
Samples: Underwriting Agreement (Angiodynamics Inc), Underwriting Agreement (Angiodynamics Inc)
Covenants of the Issuer. The Issuer Company covenants and agrees with the several Underwriters thatas follows:
(ia) The Issuer will upon request promptly deliver If and to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with extent the offering of the Bonds.
Remarketed Notes in the Remarketing is required (ivin the view of counsel for the Company) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 be registered under the Securities Act as in effect at the opinion time of Counsel the Remarketing, the Company shall (Section 5(a) of this Agreement, the “Registration Covenants”):
(i) if the Registration Statement is an “automatic shelf registration statement” on Form S-3ASR and if, at any time prior to the Remarketing Settlement Date, the Company receives from the Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to use the automatic shelf registration statement form, then (A) promptly notify the Remarketing Agent, (B) promptly file a new registration statement or post-effective amendment on the proper form relating to the Remarketed Notes, in a form satisfactory to the Remarketing Agent, (C) use its best efforts to cause such registration statement or post-effective amendment to be declared effective and (D) promptly notify the Remarketing Agent of such effectiveness; take all other action necessary or appropriate to permit the public offering and sale of the Remarketed Notes to continue as contemplated in the registration statement that was the subject of the Rule 401(g)(2) notice or for which the Underwriters a prospectus covering Company has otherwise become ineligible. References herein to the Bonds is Registration Statement shall include such new registration statement or post-effective amendment, as the case may be;
(ii) pay the required Commission filing fees relating to the Remarketed Notes within the time required by law Rule 456(b)(1) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act;
(iii) prepare the Prospectus, file any such Prospectus pursuant to the Securities Act within the period required by the Securities Act and the rules and regulations thereunder and use commercially reasonable efforts to cause, if not already effective, the Registration Statement to be delivered declared effective by the Commission prior to the applicable Remarketing Date (it being understood that, for so long as there is a material business transaction or development that has not yet been publicly disclosed, other than in connection with sales an Optional Remarketing, the Company will not be required to file such Registration Statement or provide such a Prospectus until the Company has publicly disclosed such transaction or development);
(iv) file with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company, be required by an Underwriter the Securities Act or dealer requested by the Commission;
(v) advise the Remarketing Agent promptly after it receives notice thereof, of the time when, (A) prior to the Remarketing Settlement Date, any amendment to the Registration Statement has been filed or becomes effective or, (B) before, on or after the Remarketing Settlement Date, any supplement to the Prospectus or any amended Prospectus has been filed, and in each such case excluding documents filed under the Exchange Act incorporated by reference and in each case of (A) and (B) furnish the Remarketing Agent with copies of such notice;
(vi) file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a) or (c), 14 or 15(d) of the Exchange Act subsequent to the Commencement Date and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Remarketed Notes (including in circumstances where such requirement may be satisfied pursuant to Rule 172 172), and during such same period to advise the Remarketing Agent, promptly after it receives notice thereof, (A) of the time when any amendment to any Registration Statement has become effective or any supplement to any Prospectus or any amended Prospectus has been filed, (B) of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus, (C) of the suspension of the qualification of the Remarketed Notes for offering or sale in any jurisdiction, (D) of the initiation or threatening of any proceeding or examination for any such purpose or pursuant to Section 8A of the Securities Act, or (E) of any request by the Commission for the amending or supplementing of any Registration Statement or Prospectus or for additional information; and in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any Prospectus or suspending any such qualification, use promptly its best efforts to obtain its withdrawal;
(vii) if reasonably requested by the Remarketing Agent, prepare a final term sheet for the Remarketed Notes, containing solely a description of the Remarketed Notes, in a form agreed to with the Remarketing Agent, and file such final term sheet and all other Issuer Free Writing Prospectuses required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Securities Act within the time required by such Rule;
(viii) furnish promptly to the Remarketing Agent such copies of the following documents in such quantities as the Remarketing Agent shall reasonably request: (a) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits); (b) the Preliminary Prospectus and any amendment or supplement thereto; (c) the Prospectus and any amendment or supplement thereto; (d) any Issuer Free Writing Prospectus and any amendment or supplement thereto, and (e) any document incorporated by reference in the Prospectus (excluding exhibits thereto); and, if at any time when delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act)) is required in connection with the Remarketing, any event relating to or affecting the Issuer, the Bonds or the Recovery Property or development shall have occurred as a result of which (1) the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (Prospectus as defined below) should be set forth in a supplement to, then amended or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus (or in lieu thereof, the Pricing Package notice referred to in Rule 173(a) under the Securities Act) is delivered, not misleading, or (2) if for any other reason it shall be necessary, in the reasonable judgment of the Company, during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Final Exchange Act, or (3) if it shall be necessary during such same period to amend or supplement an Issuer Free Writing Prospectus is delivered in order for the Issuer Free Writing Prospectus, as so amended or supplemented, not to a purchaser conflict with the information then contained in the Registration Statement, then in each case notify the Remarketing Agent and, upon its request, file such document and prepare and furnish without charge to the Remarketing Agent and to any dealer in securities as many copies as the Remarketing Agent may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance or an amended or supplemented Issuer Free Writing Prospectus that will not conflict with the Registration Statement;
(including in circumstances where such requirement may be satisfied ix) during the time between the applicable Commencement Date and the Remarketing Settlement Date, prior to filing with the Commission (a) any amendment to the Registration Statement or supplement to the Prospectus or (b) any Prospectus pursuant to Rule 172 424 under the Securities Act, furnish a copy thereof to the Remarketing Agent; and not file any such amendment or supplement that shall be reasonably disapproved by the Remarketing Agent;
(x) as soon as practicable, but in any event not later than eighteen months, after the date of a Successful Remarketing, to make generally available to its security holders an earnings statement of the Company (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.and
(vxi) The Issuer will furnish take such proper information action as the Remarketing Agent may be lawfully required and otherwise cooperate reasonably request in qualifying order to qualify the Bonds Remarketed Notes for offer and sale under the blue-sky securities or “blue sky” laws of such jurisdictions as the states Remarketing Agent may reasonably request and will continue such qualifications in effect so long as required for distribution of the United States as the Representatives may designateRemarketed Notes; provided that in no event shall the Issuer shall not Company be required to qualify as a foreign limited liability company or dealer corporation in securitiesa jurisdiction in which it is not so qualified, to file any consents a general consent to service of process under the laws of in any jurisdiction, jurisdiction or meet to submit to any other requirements deemed by the Issuer to be which it deems unduly burdensome.
(vib) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with Company shall pay: (i) the costs incident to the preparation and filing by it printing of the Registration Statement, Pricing Prospectus and Final Prospectus (including if any, any amendments and supplements thereto) and Preliminary Prospectus, any Issuer Free Writing ProspectusesProspectus, any Prospectus and any other Remarketing Materials and any amendments or supplements thereto; (ii) the issuance costs of distributing the Registration Statement, if any, any Prospectus and delivery any other Remarketing Materials and any amendments or supplements thereto; (iii) any fees and expenses of qualifying the Remarketed Notes under the securities laws of the Bonds several jurisdictions as provided in Section 7 hereof 5(a)(xi) and of preparing, printing and distributing a Blue Sky Memorandum, if any (including, without limitation, including any related reasonable fees and disbursements expenses of Counsel for counsel to the Underwriters and all trustee, rating agency and CPUC advisor feesRemarketing Agent), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), ; (iv) any fees charged by investment rating agencies for rating of the printing Remarketed Notes; (v) all other costs and delivery expenses incident to the Underwriters of reasonable quantities performance of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, obligations of the Pricing Package Company hereunder and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 Remarketing Agent hereunder; and (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (ivi) will reimburse the Underwriters for the reasonable fees and disbursements expenses of Counsel for counsel to the UnderwritersRemarketing Agent in connection with the review by the Financial Industry Regulatory Authority, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation Inc. of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profitsRemarketed Notes.
(viic) During The Company shall furnish the period from Remarketing Agent with such information and documents as the date of this Underwriting Agreement Remarketing Agent may reasonably request in connection with the transactions contemplated hereby, and to make reasonably available to the date Remarketing Agent and any accountant, attorney or other advisor retained by the Remarketing Agent such information, and such access to the appropriate officers, employees and accountants of the Company, that is five days after parties would customarily require, and reasonably requested by the Closing Remarketing Agent, in connection with a due diligence investigation conducted in accordance with applicable securities laws.
(d) Between the applicable Commencement Date and the applicable Remarketing Settlement Date, the Issuer Company will not, without the prior written consent of the RepresentativesRemarketing Agent (which consent may be withheld at the reasonable discretion of the Remarketing Agent), directly or indirectly, sell, offer, contract to sell or contract grant any option to sell, or otherwise dispose of, directly or indirectly, or announce any debt securities which mature more than one year after the offering of, any asset-backed securities (other than applicable Remarketing Settlement Date of the Bonds)Company similar to the Remarketed Notes.
(viiie) To The Company represents and agrees that, unless it obtains the extentprior written consent of the Remarketing Agent, which consent shall not be unreasonably withheld, and the Remarketing Agent represents and agrees that, unless it obtains the prior written consent of the Company, it has not made and will not make any offer relating to the Remarketed Notes that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 of the Securities Act), required to be filed by the Company with the Commission or retained by the Company under Rule 433; provided that, if any, that any rating necessary to satisfy the condition set forth prepared and used in accordance with Section 9(bb5(f) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parentAgreement, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer prior written consent shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture deemed given with respect to any final term sheet. Any such free writing prospectus consented to in writing by the BondsCompany or the Remarketing Agent, as the case may be, is hereinafter referred to as a “Permitted Free Writing Prospectus”. To the extent The Company represents that the Issuer’s obligations are terminated or limited by it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an amendment to Section 3.07(g) “issuer free writing prospectus” (as defined in Rule 433 of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if has complied and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance requirements of Rules 164 and 433 of the 17g-5 Representations Securities Act applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
(f) The Company will prepare a final term sheet relating to the Remarketed Notes, containing only information that would not have a material adverse effect on describes the rating final terms of the Bonds or Remarketed Notes after providing the Bonds or Remarketing Agent and its legal counsel with a reasonable opportunity to review and comment on such final term sheet (ysuch final term sheet to be in form and substance as last reviewed by the Remarketing Agent and the Company), and will file such final term sheet within the period required by Rule 433(d) any noncompliance arising from the breach by an Underwriter of the representations Securities Act following the date such final terms have been established for the Remarketed Notes. Any such final term sheet is an Issuer Free Writing Prospectus and warranties and covenants set forth in Section 13 hereofa Permitted Free Writing Prospectus for purposes of this Agreement.
Appears in 2 contracts
Samples: Purchase Contract and Pledge Agreement (Dte Energy Co), Purchase Contract and Pledge Agreement (Dte Energy Co)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb9(s) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxx Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 2 contracts
Samples: Underwriting Agreement (SCE Recovery Funding LLC), Underwriting Agreement (SCE Recovery Funding LLC)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to for the Underwriters a conformed copy of the Registration Statement, certified by an officer or manager of the Issuer to be in the form as originally filed filed, including all Incorporated Documents and exhibits and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order issued by the Commission suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its every reasonable best efforts effort to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereofthereof by the Commission. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Securitization Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus Prospectus, as applicable, by either either
(A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement; provided, further, that counsel for the Underwriters shall not have objected to such amendment or supplement pursuant to Section 8(a)(x) or Section 8(b)(x). The Issuer will also fulfill its obligations set out in Section 3(d3(e) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all reasonable expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable documented fees and out-of-pocket disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC MPSC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,0005,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse (or cause to be reimbursed) the Underwriters for the reasonable documented fees and out-of-pocket disbursements of Counsel for the Underwriters, and (ii) will reimburse or cause to be reimbursed the Underwriters for their reasonable documented out-of-pocket expensesexpenses (other than fees of counsel covered in clause (i) above), such out-of-of pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb9(s) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actionsactions to the extent reasonably requested by any Rating Agency.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and not prohibited by the terms of the Basic Issuer Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the any periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, Underwriters or to which Hunton Xxxxxxx Xxxxx Xxxxxx & Xxxxxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the IssuerIssuer within two business days of notification thereof.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders bondholders (in each case to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC MPSC pursuant to the Financing Order including, but not limited toto any annual, any issuance advice letter semi-annual or any routine or nonmore frequent true-routine True-Up Adjustment up adjustment filings, and (C) from time to time, any information (other than confidential or proprietary information) concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 2 contracts
Samples: Underwriting Agreement (Consumers 2014 Securitization Funding LLC), Underwriting Agreement (Consumers 2014 Securitization Funding LLC)
Covenants of the Issuer. The 10.1 If, during the Sponsorship Term, a Material Change in the assets, liabilities (contingent or otherwise), business, operations or capital of the Issuer covenants and agrees with occurs, or is anticipated or threatened, or change in a Material Fact occurs in the several Underwriters thataffairs of the Issuer, the Issuer will:
(ia) The Issuer will upon request promptly deliver to notify the Representatives and Counsel to the Underwriters a conformed copy Agent, in writing of the Registration Statement, certified by an officer full particulars of the Issuer to be in the form as originally filed and all amendments thereto.change;
(iib) The Issuer will deliver to file with the Underwriters, Regulator)' Authorities as soon as practicable practicable, and in any event no later than 10 days after the date hereofchange occurs, an amendment to the Prospectus in a form acceptable to the Agent disclosing the Material Change; and
(c) provide as many copies of that amendment to the Pricing Prospectus and Final Prospectus Agent as they the Agent may reasonably request.
(iii) 10.2 The Issuer will cause or has caused the Final Prospectus to be filed shall in good faith discuss with the Commission Agent any fact or change in circumstances (actual and anticipated, contemplated or threatened, whether financial or otherwise) which is of such a nature that there is reasonable doubt as to whether notice in writing need be given to the Agent pursuant to Rule 424 under the Securities Act previous Subsection.
10.3 If the Issuer is not certain as soon to whether a Material Change has occurred, the Issuer must promptly notify the Agent in writing of the full particulars of the event giving rise to the uncertainty, and must consult with the Agent as practicable and will advise to whether such event constitutes a Material Change.
10.4 During the Underwriters Sponsorship Term the Issuer must promptly provide the Agent with copies of all Reports forthwith upon preparation or receipt of same.
10.5 During the Sponsorship Term the Issuer must promptly notify the Agent of:
(a) any proposed Change of Business (as defined in the Exchange Policies) of the Issuer;
(b) any proposed Fundamental Acquisition (as defined in the Exchange Policies) of the Issuer;
(c) any proposed Change of Control (as defined in the Exchange Policies) of the Issuer;
(d) any proposed Change of Management (as defined in the Exchange Policies) of the Issuer;
(e) any other proposed transaction of the Issuer that constitutes an element of a Reverse Take-Over (as defined in the Exchange Policies); and
(f) sale or other disposition of any stop order suspending outstanding shares in the effectiveness capital of any Subsidiaries wholly or partially owned by the Issuer.
10.6 During the Sponsorship Term the Issuer must promptly notify the Agent of any proposed change to the constitution of the Registration Statement board of directors of the Issuer, or to the institution membership of any proceeding therefor senior management of which Issuer shall have received noticethe Issuer. The Issuer will must promptly notify the Agent in writing of any resignations, terminations or departures of members of the board of directors or senior management (together with the events outlined in die above Subsection, "Fundamental Change").
10.7 During the Sponsorship Term the Issuer must provide the Agent with copies of all Quarterly and Year End Reports, press releases, promotional materials, material change reports, materials prepared in connection with the Issuer's annual general meeting and any other general meetings of shareholders, annual reports, and financial statements prepared by or for the Issuer promptly after their preparation or receipt.
10.8 During the Sponsorship Term the Issuer must, at least 10 business days before the deadline, notify the Agent of any circumstances where the Issuer does not expect to comply with a filing deadline imposed by the Exchange or the Commissions.
10.9 The Issuer must at all times use its reasonable best efforts to prevent assist the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. Agent in carrying out its Sponsorship Duties.
10.10 The Issuer acknowledges that it has complied appointed Xxxxxx Xxxxxx, President and will comply with Rule 433 under the Securities Act in connection with the offering Chief Executive Officer of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, as its officer responsible for carrying out its reporting obligations to the Bonds or Agent hereunder, and agrees that the Recovery Property or Agent may direct and address all inquiries and submit all notices hereunder to the attention of which Xxxxxx Xxxxxx.
10.11 Nothing in this Agreement is to be construed as a xxxxxx on the discretion of the directors of the Issuer.
10.12 All information relating to the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to the Agent must be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause directed to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it die corporate finance department of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the UnderwritersAgent, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract not disclose to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website person associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such Agent any information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds Issuer which is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably requestavailable.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 2 contracts
Samples: Sponsorship and Agency Agreement (Innexus Biotechnology Inc), Sponsorship and Agency Agreement (Innexus Biotechnology Inc)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives Underwriters and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or preventing the use of the Registration Statement, or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 and Rule 163B under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Securitized Utility Tariff Property or of which the Issuer shall be advised in writing by the Representatives Underwriters shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above. The Issuer will advise the Underwriters promptly in writing when any supplement to the Pricing Package, the Final Prospectus or any amendment to the Final Prospectus has been filed or distributed.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives Underwriters may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE Liberty will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC MPSC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,00015,000.00), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE Liberty (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the RepresentativesUnderwriters, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb9(y) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE Liberty will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx Nxxxxx Rxxx Xxxxxxxxx US LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE Liberty and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the RepresentativesUnderwriters, if and to the extent not posted on XXXXX EXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC MPSC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives Underwriters may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 2 contracts
Samples: Underwriting Agreement (Empire District Bondco, LLC), Underwriting Agreement (Empire District Bondco, LLC)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed filed, including all Incorporated Documents and exhibits and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Transition Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d3(e) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE TCC will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC PUCT advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE TCC (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-of pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g3.07(d) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g3.07(d) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE TCC will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx & XxXxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE TCC and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC PUCT pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine annual, semi-annual or non-routine more frequent True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 2 contracts
Samples: Underwriting Agreement (AEP Transition Funding III LLC), Underwriting Agreement (AEP Transition Funding III LLC)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver use its best efforts to the Representatives and Counsel to the Underwriters a conformed copy of cause the Registration Statement, certified by an officer if not effective at the Execution Time, and any amendment thereto, to become effective. Prior to the termination of the Issuer to be in offering of the form as originally filed and all amendments thereto.
(ii) The Energy Recovery Bonds, the Issuer will deliver not file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the UnderwritersBasic Prospectus unless the Issuer has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus Prospectus, properly completed, and any amendment or supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424 under 424(b) within the Securities Act as soon as practicable time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Issuer will promptly advise the Underwriters Representatives (A) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective, (B) when the Final Prospectus, and any amendment or supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (C) when, prior to termination of the offering of the Energy Recovery Bonds, any amendment to the Registration Statement shall have been filed or become effective, (D) of any request by the Commission for any amendment of the Registration Statement or amendment or supplement to the Final Prospectus or for any additional information, (E) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding therefor for that purpose and (F) of which the receipt by the Issuer shall have received noticeof any notification with respect to the suspension of the qualification of the Energy Recovery Bonds for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(ivii) If, during such period at any time when a prospectus relating to the Energy Recovery Bonds is required to be delivered under the Act, any event occurs as a result of time (not exceeding nine months) after which the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter then amended or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances when under which they were made not misleading, or if it shall be necessary to amend the Pricing Package Registration Statement or supplement the Final Prospectus is delivered to a purchaser comply with the Act or the Exchange Act or the respective rules thereunder, the Issuer promptly will (including in circumstances where x) promptly notify the Representatives of such requirement may be satisfied pursuant to Rule 172 under event, (y) prepare and file with the Securities Act)Commission an amendment or supplement which will correct such statement or omission or effect such compliance, not misleading; provided that should such event relate solely prior to filing any amendment or supplement the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing Issuer will provide to you a copy for your review and furnishing will not file any such proposed amendment or supplement. The Issuer will also fulfill its obligations set out supplement to which you reasonably object, and (z) supply any supplemented Final Prospectus to you in Section 3(d) abovesuch quantities as you may reasonably request.
(viii) The Issuer will furnish such proper information to the Representatives and counsel for the Underwriters, without charge, copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be lawfully required by the Act, as many copies of any Preliminary Prospectus and otherwise cooperate in qualifying the Bonds for offer Final Prospectus and sale under the blue-sky laws of the states of the United States any amendment or supplement thereto as the Representatives may designate; provided that the reasonably request. The Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay furnish or cause to be paid furnished to the Representatives copies of all reports on Form SR required by Rule 463 under the Act. The Issuer will pay the expenses and taxes (except transfer taxes) in connection with (i) of printing, distribution or other production of all documents relating to the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), offering.
(iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable will file or to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports cause to be filed with the Commission a current report on Form 8-K setting forth all Computational Materials, ABS Term Sheets and Collateral Term Sheets (collectively, “Investor Materials”) provided to the Issuer by any Underwriter within the applicable time periods allotted for such filing pursuant to the No-Action Letter of May 20, 1994, issued by the SEC to Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx, Peabody & Co. Incorporated and Xxxxxx Structured Asset Corporation, as provided above or posted on made applicable to other issuers and underwriters by the website associated with SEC in response to the Issuer’s parent, such information as required by Section 3.07(g) request of the Indenture with respect to Public Securities Association dated May 24, 1994 (collectively, the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the UnderwritersXxxxxx/PSA Letters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any requirements of the Bonds are outstandingNo-Action Letter of February 17, 1995, issued by the SEC to the Public Securities Association (the “PSA Letter” and, together with the Xxxxxx/PSA Letter, the Issuer will furnish to “No-Action Letters”). For purposes hereof, “Computational Materials” shall have the Representatives, if and to meaning given such term in the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order includingNo-Action Letters, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations shall include only those Computational Materials that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.have
Appears in 1 contract
Samples: Underwriting Agreement (PG&E Energy Recovery Funding LLC)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to for the Underwriters a conformed copy of the Registration Statement, certified by an officer or manager of the Issuer to be in the form as originally filed filed, including all Incorporated Documents and exhibits and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order issued by the Commission suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its every reasonable best efforts effort to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereofthereof by the Commission. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Securitization Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus Prospectus, as applicable, by either either
(A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement; provided, further, that counsel for the Underwriters shall not have objected to such amendment or supplement pursuant to Section 8(a)(x) or Section 8(b)(x). The Issuer will also fulfill its obligations set out in Section 3(d3(e) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all reasonable expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable documented fees and out-of-pocket disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC MPSC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,0005,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse (or cause to be reimbursed) the Underwriters for the reasonable documented fees and out-of-pocket disbursements of Counsel for the Underwriters, and (ii) will reimburse or cause to be reimbursed the Underwriters for their reasonable documented out-of-pocket expensesexpenses (other than fees of counsel covered in clause (i) above), such out-of-of pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb9(s) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actionsactions to the extent reasonably requested by any Rating Agency.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and not prohibited by the terms of the Basic Issuer Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the any periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, Underwriters or to which Hunton Xxxxxxx Xxxxx & Xxxxxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the IssuerIssuer within two business days of notification thereof.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders bondholders (in each case to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC MPSC pursuant to the Financing Order including, but not limited toto any annual, any issuance advice letter semi-annual or any routine or nonmore frequent true-routine True-Up Adjustment up adjustment filings, and (C) from time to time, any information (other than confidential or proprietary information) concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act (“Rule 424”) as in the opinion of Counsel for the Underwriters (as defined below) a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Storm Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or of, the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer willwill promptly notify the Representatives of such event and, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(viii) The Issuer or SCE ENO will, except as herein provided, pay or cause to be paid paid, all reasonable costs and expenses of the Issuer, the Indenture Trustee and the Underwriters incident to the performance of the obligations hereunder, including, without limiting the generality of the foregoing, (A) all costs, taxes and expenses incident to the issue and delivery of the Bonds to the Underwriters; (except transfer taxesB) in connection with (i) all costs and expenses incident to the preparation preparation, printing, reproduction and filing by it distribution of the Registration StatementStatement as originally filed with the Commission and each amendment or supplement thereto, the Pricing Prospectus (including any amendments and supplements thereto), the Final Prospectus (including any amendments and supplements thereto) ), and any Issuer Free Writing Prospectuses; (C) all reasonable fees, disbursements and expenses of (1) the Issuer’s counsel, (ii2) ENO’s counsel, (3) the issuance and delivery of the Bonds as provided in Section 7 hereof Indenture Trustee’s counsel, (including, without limitation, reasonable fees and disbursements of 4) Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees)Underwriters, (iii5) the Issuer’s accountants and (6) ENO’s accountants; (D) all fees charged by the Rating Agencies in connection with the rating of the Bonds; (E) all fees of DTC in connection with the book-entry registration of the Bonds; (F) all costs and expenses incurred in connection with the qualification of the Bonds for sale under blue-sky the laws of such jurisdictions in the United States as the Representatives may designate, together with costs and expenses in connection with any filing with FINRA with respect to the transactions contemplated hereby (including counsel fees not to exceed $15,000[10,000]), ; (ivG) the all costs and expenses of printing and delivery distributing all of the documents in connection with the Bonds; and (H) all Council approved fees, costs and expenses of the Council and its advisors in connection with the issuance of the Bonds.
(iii) The Issuer will cause the Pricing Prospectus and the Final Prospectus to be filed with the Commission pursuant to Rule 424 as soon as practicable and advise the Underwriters of reasonable quantities any stop order suspending the effectiveness of the Registration Statement and, except as or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If the sale of the Bonds provided for herein is not consummated because any condition set forth in Section 8(a)(iv9 hereof is not satisfied, because of any termination pursuant to Section 12 hereof or because of any refusal, inability or failure on the part of ENO or the Issuer to perform any agreement herein or comply with any provision hereof other than by reason of a default (including under Section 7 hereof) hereof, by any of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default)Underwriters, 9, 10 ENO or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters upon demand for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred by them in contemplation connection with the proposed purchase and sale of the performance of this Underwriting AgreementBonds. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(viiv) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed asset‑backed securities (other than the Bonds).
(viiivi) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb9(aa) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer prior to, on or after the Closing Date, the Issuer shall furnish such documents and take such other actionsactions to the extent reasonably requested by any Rating Agency.
(ixvii) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall alsoshall, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(xviii) The Issuer and SCE will not file any amendment furnish to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Representatives and Counsel for the Underwriters”, without charge, copies of the Registration Statement (including exhibits thereto), shall reasonably object by written notice to SCE and as many copies of the Pricing Prospectus and the IssuerFinal Prospectus and any amendment or supplement thereto as the Representatives may reasonably request.
(xiix) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC Council pursuant to the Financing Act and the Financing Order including, but not limited to, any issuance advice letter (“Issuance Advice Letter”) filed with the Council pursuant to the Financing Order with respect to the Storm Recovery Bonds or any routine semi-annual or nonmore frequent true-routine True-Up Adjustment filingsup request letters, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xiix) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and representations, warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Entergy New Orleans Storm Recovery Funding I, L.L.C.)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Series A Transition Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or of, the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(viii) The Issuer or SCE TCC will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing ProspectusesProspectus, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC PUCT financial advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,00010,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package Prospectus and Final Prospectus and (v) any amendment or supplement to the Registration Statement, Pricing Prospectus, or Issuer Free Writing Prospectus required to be filed with the Commission to correct any untrue statement of a material fact or omission of any statement necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading, the result of which requires the reforming of any Contracts of Sale of the Bonds made by the Underwriters (including any damages or other amounts payable in connection with legal and contractual liability). If the obligation The Issuer shall not, however, be required to pay any amount for any expenses of the Underwriters to purchase or for any fees and expenses of counsel for the Bonds terminates PUCT financial advisor, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, Section 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(viiiii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viiiiv) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb9(dd) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ixv) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that , and the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic DocumentsCommission. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parentabove, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Covenants of the Issuer. The Issuer hereby covenants and agrees with that for so long as any of the several Underwriters thatSecurities shall remain Outstanding:
(ia) The it will duly and punctually pay the principal of and any interest on the Securities in accordance with the terms hereof;
(b) it will do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charters and statutory) and franchises;
(c) it will cause all material properties used or useful in the conduct of its business to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the reasonable judgment of Issuer will upon request promptly deliver may be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times; provided, however, that the foregoing shall not prevent the Issuer from discontinuing the operation or maintenance of any such properties if such discontinuance is, in the reasonable judgment of Issuer, desirable in the conduct of its business or the business of any of its subsidiaries, and not disadvantageous in any material respect to the Representatives holders of Securities; and, provided, further, that the failure to comply herewith shall not be deemed a breach hereof unless such failure would have a material adverse effect on the business, financial condition or results of operations of Issuer and Counsel its subsidiaries, taken as a whole (a "Material Adverse Effect");
(d) it will pay or discharge or cause to be paid or discharged, before the Underwriters a conformed copy same shall become delinquent, (I) all taxes, assessments and governmental charges levied or imposed upon the Issuer or upon the income, profits or property of the Registration StatementIssuer, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to all lawful claims for labor, materials and supplies which, if unpaid, might by law become a lien upon the Underwriters, as soon as practicable after the date hereof, as many copies property of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order andIssuer; provided, if issuedhowever, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company pay or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings; and, provided, further, that the failure to comply herewith shall not be deemed a breach if it would not have a Material Adverse Effect;
(e) it shall furnish to each Registered Holder of Securities a copy of all expenses and taxes (except transfer taxes) in connection with (i) documents it is required to send to its shareholders at the preparation and filing by it of time the Registration Statementsame are sent to shareholders, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees annual reports and disbursements proxy statements;
(f) as soon as it becomes aware of Counsel the same, it shall give written notice to each Registered Holder of Securities of any event or occurrence which by itself or with notice or lapse of time or both would entitle the holders of the Securities to declare the principal of and any interest on the Securities immediately due and payable pursuant to Section 15 hereof;
(g) it will promptly obtain and maintain from time to time all authorizations, permits, approvals, consents, licenses and exemptions which are required under any applicable law or regulation to enable it to perform all of its payment, conversion and other material obligations under the Securities or which may be required for the Underwriters validity or enforceability of the Securities; provided, however, that the failure to obtain and maintain such authorizations, permits, approvals, consents, licenses and exemptions as to material obligations other than payment and conversion shall not constitute a breach of this provision unless such non-compliance materially adversely affects the Issuer's ability to comply with its obligations under the Securities;
(h) it will duly and punctually comply with and observe all statutes now or hereafter in force and all trusteeordinances, rating agency regulation and CPUC advisor fees)by-laws thereunder and all requirements and orders of any government or other public authority; provided, however, that any non-compliance with any such statute, ordinance, regulation or by-law shall not constitute a breach of this provision unless such non-compliance materially adversely affects the Issuer's ability to comply with its obligations under the Securities;
(iiii) the qualification it shall permit any representative of any Registered Holder or Holders of at least $250,000 aggregate principal amount of the Bonds under blue-sky laws (including counsel fees not Securities to exceed $15,000)make inspections of, (iv) and to report on, the printing property of, and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder business operations being carried out of an Underwriter default), 9, 10 or 12 hereofby, the Issuer or SCE any of its subsidiaries;
(j) it shall maintain and keep in force with reputable insurers and in adequate amounts, property, casualty, third party liability, business interruption and all such other insurances as would prudently be effected and maintained in the case of a company carrying on a business similar to that of the Issuer;
(k) it shall not:
(i) will reimburse declare or pay any cash dividends on its Common Stock or purchase, redeem or otherwise acquire or retire for value any shares of Common Stock (other than under the Underwriters for terms of the reasonable fees and disbursements of Counsel for the Underwriters, and Issuer's stock option plan); or
(ii) will reimburse the Underwriters for their reasonable out-of-pocket expensesconsolidate with or merge into any other Person, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, where the Issuer will notis not the surviving corporation, without the prior written consent of the Representativesor convey, offertransfer, sell or contract to sell, lease or otherwise dispose ofof all or substantially all of its assets, directly or indirectly, or announce except in compliance with the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition terms and conditions set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions12 below.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Samples: Convertible Subordinated Debenture (Williams Controls Inc)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act (“Rule 424”) as in the opinion of Counsel for the Underwriters (as defined below) a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Transition Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or of, the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer willwill promptly notify the Representatives of such event and, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(viii) The Issuer or SCE ETI will, except as herein provided, pay or cause to be paid paid, all reasonable costs and expenses of the Issuer, the Indenture Trustee and the Underwriters incident to the performance of the obligations hereunder, including, without limiting the generality of the foregoing, (A) all costs, taxes and expenses incident to the issue and delivery of the Bonds to the Underwriters; (except transfer taxesB) in connection with (i) all costs and expenses incident to the preparation preparation, printing, reproduction and filing by it distribution of the Registration StatementStatement as originally filed with the Commission and each amendment or supplement thereto, the Pricing Prospectus (including any amendments and supplements thereto), the Final Prospectus (including any amendments and supplements thereto) ), and any Issuer Free Writing Prospectuses; (C) all reasonable fees, disbursements and expenses of (1) the Issuer’s counsel, (ii2) ETI’s counsel, (3) the issuance and delivery of the Bonds as provided in Section 7 hereof Indenture Trustee’s counsel, (including, without limitation, reasonable fees and disbursements of 4) Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees)Underwriters, (iii5) the Issuer’s accountants and (6) ETI’s accountants; (D) all fees charged by the Rating Agencies in connection with the rating of the Bonds; (E) all fees of DTC in connection with the book-entry registration of the Bonds; (F) all costs and expenses incurred in connection with the qualification of the Bonds for sale under blue-sky the laws of such jurisdictions in the United States as the Representatives may designate, together with costs and expenses in connection with any filing with FINRA with respect to the transactions contemplated hereby (including counsel fees not to exceed $15,00010,000), ; and (ivG) the and all costs and expenses of printing and delivery distributing all of the documents in connection the Bonds.
(iii) The Issuer will cause the Pricing Prospectus and the Final Prospectus to be filed with the Commission pursuant to Rule 424 as soon as practicable and advise the Underwriters of reasonable quantities any stop order suspending the effectiveness of the Registration Statement and, except as or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If the sale of the Bonds provided for herein is not consummated because any condition set forth in Section 8(a)(iv9 hereof is not satisfied, because of any termination pursuant to Section 12 hereof or because of any refusal, inability or failure on the part of ETI or the Issuer to perform any agreement herein or comply with any provision hereof other than by reason of a default (including under Section 7) hereof, by any of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default)Underwriters, 9, 10 ETI or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters upon demand for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred by them in contemplation connection with the proposed purchase and sale of the performance of this Underwriting AgreementBonds. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(viiv) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viiivi) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb9(dd) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ixvii) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parentparent or affiliate, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that , and the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic DocumentsCommission. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parentabove, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(xviii) The Issuer and SCE will not file any amendment furnish to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Representatives and Counsel for the Underwriters”, without charge, copies of the Registration Statement (including exhibits thereto), shall reasonably object by written notice to SCE and as many copies of the Pricing Prospectus and the IssuerFinal Prospectus and any amendment or supplement thereto as the Representatives may reasonably request.
(xiix) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC PUCT pursuant to the Financing Act and the Financing Order including, but not limited to, any issuance advice letter Issuance Advice Letter or any routine annual or non-routine more frequent True-Up Adjustment filingsAdvice Letters, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Entergy Texas Restoration Funding, LLC)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) 3.1 The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many Adviser such numbers of copies of the Pricing Prospectus Offering Statement and Final Prospectus any amendment or supplement thereto, with all appendices thereto, as they the Adviser may reasonably requestrequest for the purposes contemplated by federal and applicable state securities laws.
(iii) 3.2 The Issuer will cause comply with all requirements imposed upon it by the rules and regulations of the Securities and Exchange Commission (or has caused “SEC”), and by all applicable state securities laws and regulations, to permit the Final Prospectus to be filed continuance of offers and sales of the Securities, in accordance with the Commission pursuant to Rule 424 under provisions hereof and in the Securities Act as soon as practicable Offering Statement, and will advise amend or supplement the Underwriters of any stop order suspending the effectiveness of the Registration Offering Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or Offering Statement comply with the Final Prospectus not misleading in requirements of federal and applicable state securities laws and regulations.
3.3 If at any time any event occurs as a result of which the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or Offering Statement would include an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or or, in view of the circumstances under which it was made, omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), therein not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will notnotify the Adviser thereof, without effect the prior written consent preparation of an amended or supplemental Offering Statement which will correct such statement or omission, and deliver to the Representatives, offer, sell Adviser as many copies of such amended or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time supplemental Offering Statement as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives Adviser may reasonably request.
(xii) So long as 3.4 The Issuer will apply the Bonds are rated net proceeds from the Offering received by any Rating Agencyit in the manner set forth in the Offering Statement.
3.5 Subject to the Adviser’s actions and the actions of others in connection with the Offering, the Issuer will comply with all requirements imposed upon it by Regulation A, the 17g-5 Representationsregulations thereunder, and applicable state securities laws.
3.6 The Issuer will furnish the Security Holders with the reports described in the Offering Statement under “Reporting Requirements,” and will deliver to the Adviser one copy of each such report at the time that such reports are furnished to the Security Holders, and such other than (x) any noncompliance of information concerning the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereofIssuer, as may reasonably be requested.
Appears in 1 contract
Samples: Registered Investment Adviser Client Introduction Agreement (Cottonwood Multifamily Reit Ii, Inc.)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed signed copy of the Registration StatementStatement as originally filed or, to the extent a signed copy is not available, a conformed copy, certified by an officer of the Issuer to be in the form as originally filed and filed, including all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and the Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act (“Rule 424”) as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) As soon as practicable, but not later than 12 months after the date hereof, the Issuer will make generally available to its security holders, an earnings statement (which need not be audited) that will satisfy the provisions of Section 11(a) of the Securities Act with respect to the Bonds.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of such jurisdictions as the Representatives may designate; provided that neither the Issuer, Potomac Edison nor PE Renaissance shall be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer, Potomac Edison or PE Renaissance, as applicable, to be unduly burdensome.
(vi) The Issuer will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Dxx Xxxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to Potomac Edison and the Issuer.
(vii) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities ActAct (“Rule 172”)), any event relating to or affecting the Issuer, the Bonds or the Recovery Transferred Environmental Control Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or of, the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act172), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act172), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(vviii) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing ProspectusesProspectus, (ii) the issuance and delivery of the Bonds as provided in Section 7 8 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC PSCWV financial advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000)laws, (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement andStatement, except as provided the Pricing Prospectus and Final Prospectus and (v) any amendment or supplement to the Registration Statement, Pricing Prospectus, or Issuer Free Writing Prospectus required to be filed with the Commission to correct any untrue statement of a material fact or omission of any statement necessary to make the statements therein, in Section 8(a)(iv) hereof, the light of the Pricing Package circumstances in which they were made, not misleading, the result of which requires the reforming of any contracts of sale of the Bonds made by the Underwriters (including any damages or other amounts payable in connection with legal and Final Prospectuscontractual liability). If the obligation of the Underwriters to purchase the Bonds terminates this Underwriting Agreement shall be terminated in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 Section 11 or 12 13 hereof, the Issuer shall not be required to pay any amount for any expenses of the Underwriters or SCE (i) for any fees and expenses of counsel for the PSCWV financial advisor, except that the Issuer will reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding $100,000, incurred in contemplation of the performance of this Underwriting Agreement and will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(viiix) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viiix) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb10(z) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ixxi) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commissionshall, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parentabove, such information as required by Section 3.07(g3.07(e) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g3.07(e) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(xxii) The Issuer and SCE will not file any amendment to During a period of one year from the effective date of the Registration Statement or amendment or supplement Statement, to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, Representatives (A) as soon as they are available, a copy copies of each report any reports and financial statements of the Issuer furnished to or filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent Commission, other than such reports and financial statements that are not publicly available on the Commission’s website), EXXXX system; and (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any such additional information concerning the business and financial condition of the Issuer as the Representatives may from time to time reasonably requestrequest (such financial statements to be on a consolidated basis to the extent the accounts of the Issuer are consolidated in reports furnished to its shareholders generally or to the Commission).
(xiixiii) So long The Issuer will file with the Commission such information on Form 10-D or Form 10-K as may be required by Rule 463 under the Bonds are rated by any Rating AgencySecurities Act.
(xiv) If the Issuer elects to rely upon Rule 462(b) under the Securities Act (“Rule 462(b)”), the Issuer will comply shall file a Rule 462(b) Registration Statement with the 17g-5 RepresentationsCommission in compliance with Rule 462(b) by 10:00 P.M., other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect Washington, D.C. time, on the rating date of this Agreement, and the Bonds Issuer shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the Bonds or (ypayment of such fee pursuant to Rule 111(b) any noncompliance arising from under the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereofSecurities Act.
Appears in 1 contract
Samples: Underwriting Agreement (MP Environmental Funding LLC)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) : If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act ("Rule 424") as in the opinion of Counsel for the Underwriters (as defined below) a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Transition Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s 's reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or of, the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer willwill promptly notify the Representatives of such event and, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s 's expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE ETI will, except as herein provided, pay or cause to be paid paid, all reasonable costs and expenses of the Issuer, the Indenture Trustee and the Underwriters incident to the performance of the obligations hereunder, including, without limiting the generality of the foregoing, (A) all costs, taxes and expenses incident to the issue and delivery of the Bonds to the Underwriters; (except transfer taxesB) in connection with (i) all costs and expenses incident to the preparation preparation, printing, reproduction and filing by it distribution of the Registration StatementStatement as originally filed with the Commission and each amendment or supplement thereto, the Pricing Prospectus (including any amendments and supplements thereto), the Final Prospectus (including any amendments and supplements thereto) ), and any Issuer Free Writing Prospectuses; (C) all reasonable fees, disbursements and expenses of (1) the Issuer's counsel, (ii2) ETI's counsel, (3) the issuance and delivery of the Bonds as provided in Section 7 hereof Indenture Trustee's counsel, (including, without limitation, reasonable fees and disbursements of 4) Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees)Underwriters, (iii5) the Issuer's accountants and (6) ETI's accountants; (D) all fees charged by the Rating Agencies in connection with the rating of the Bonds; (E) all fees of DTC in connection with the book-entry registration of the Bonds; (F) all costs and expenses incurred in connection with the qualification of the Bonds for sale under blue-sky the laws of such jurisdictions in the United States as the Representatives may designate, together with costs and expenses in connection with any filing with FINRA with respect to the transactions contemplated hereby (including counsel fees not to exceed $15,00010,000), ; and (ivG) the and all costs and expenses of printing and delivery distributing all of the documents in connection the Bonds. The Issuer will cause the Pricing Prospectus and the Final Prospectus to be filed with the Commission pursuant to Rule 424 as soon as practicable and advise the Underwriters of reasonable quantities any stop order suspending the effectiveness of the Registration Statement and, except as provided or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer has complied and will comply with Rule 433 under the Securities Act in Section 8(a)(iv) hereof, connection with the offering of the Pricing Package and Final ProspectusBonds. If the obligation sale of the Underwriters Bonds provided for herein is not consummated because any condition set forth in Section 9 hereof is not satisfied, because of any termination pursuant to purchase Section 12 hereof or because of any refusal, inability or failure on the Bonds terminates in accordance with the provisions part of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 ETI or 12 hereof, the Issuer to perform any agreement herein or SCE comply with any provision hereof other than by reason of a default (iincluding under Section 7) by any of the Underwriters, ETI or the Issuer will reimburse the Underwriters upon demand for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred by them in contemplation connection with the proposed purchase and sale of the performance of this Underwriting AgreementBonds. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) . During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) . To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb9(dd) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) . For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s 's obligations under applicable law, make available on the website associated with the Issuer’s parent's parent or affiliate, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s 's obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that , and the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic DocumentsCommission. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s 's obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parentabove, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s 's obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) . The Issuer and SCE will not file any amendment furnish to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Representatives and Counsel for the Underwriters”, without charge, copies of the Registration Statement (including exhibits thereto), shall reasonably object by written notice to SCE and as many copies of the Pricing Prospectus and the Issuer.
(xi) Final Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s 's website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s 's website), (B) upon request, a copy of any filings with the CPUC PUCT pursuant to the Financing Act and the Financing Order including, but not limited to, any issuance advice letter Issuance Advice Letter or any routine annual or non-routine more frequent True-Up Adjustment filingsAdvice Letters, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Entergy Texas Restoration Funding, LLC)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed signed copy of the Registration StatementStatement as originally filed or, to the extent a signed copy is not available, a conformed copy, certified by an officer of the Issuer to be in the form as originally filed filed, including all Incorporated Documents and exhibits and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Transition Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of of, the Pricing Package Prospectus, the Pricing Term Sheet and each other Issuer Free Writing Prospectus, considered together (the “Pricing Package”) or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d3(e) above.
(v) As soon as practicable, but not later than 16 months, after the date hereof, the Issuer will make generally available to its security holders, an earnings statement (which need not be audited) that will satisfy the provisions of Section 11 (a) of the Securities Act.
(vi) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States such jurisdictions as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vivii) The Issuer or SCE the Company will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, trustee and rating agency and CPUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,00010,000), and (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package Prospectus and Final Prospectus. If The Issuer shall not, however, be required to pay any amount for any expenses of the Underwriters, except that, if the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections Section 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 13 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(viiviii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viiiix) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb9(aa) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ixx) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that , and the Issuer shall not not, voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic DocumentsCommission. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parentabove, such information as required by Section 3.07(g3.07(d) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g3.07(d) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(xxi) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx & XxXxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuerin writing.
(xixii) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC PUCT pursuant to the Financing Order including, but not limited to, any issuance advice letter Issuance Advice Letter or any routine annual or non-routine more frequent True-Up Adjustment filingsAdvice Letters, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (CenterPoint Energy Transition Bond CO III, LLC)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed signed copy of the Registration StatementStatement as originally filed or, to the extent a signed copy is not available, a conformed copy, certified by an officer of the Issuer to be in the form as originally filed filed, including all Incorporated Documents and exhibits and of all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as of such date as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Series 2003 Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act)dealer, any event relating to or affecting the Issuer, the Series 2003 Bonds or the Recovery Series 2003 Transition Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s 's reasonable judgment opinion after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of of, the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act)purchaser, the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s 's expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act)purchaser, not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer In case any Underwriter is required to deliver a prospectus after the expiration of nine months from the 424 Date, the Issuer, upon such Underwriter's request, will also fulfill its obligations set out in furnish to such Underwriter, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or supplements to the Prospectus complying with Section 3(d10(a) aboveof the Securities Act.
(v) The Issuer will make generally available to its security holders, as soon as practicable, an earnings statement (which need not be audited) covering a period of at least twelve months beginning not earlier than the first day of the month next succeeding the month in which occurred the effective date of the Registration Statement as defined in Rule 158 under the Securities Act.
(vi) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Series 2003 Bonds for offer and sale under the blue-sky laws of the states of the United States such jurisdictions as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vivii) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Series 2003 Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC PUCT financial advisor fees), (iii) the qualification of the Series 2003 Bonds under blue-sky laws (including counsel fees not to exceed $15,0007,500), and (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv8(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation The Issuer shall not, however, be required to pay any amount for any expenses of the Underwriters to purchase the Bonds terminates Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default)Section 7, 9, 10 9 or 12 13 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,00010,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(viiviii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Series 2003 Bonds).
(viiiix) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb9(y) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ixx) The Issuer will file with the Commission a report on Form 8-K setting forth all Computational Materials and ABS Term Sheets (as such terms are hereinafter defined) provided to the Issuer by any Underwriter and identified by it as such within the time period allotted for such filing pursuant to the No-Action Letters (as hereinafter defined); provided, however, that, prior to any filing of the Computational Materials and ABS Term Sheets by the Issuer, such Underwriter must comply with its obligations pursuant to Section 8A hereof, and the Issuer must receive, prior to the Closing Date, a letter from Ernst & Young, certified public accountants, satisfactory in form and substance to the Issuer and such Underwriter, to the effect that such accountants have performed specified procedures, all of which have been agreed to by the Issuer and such Underwriter, as a result of which they have determined that the information included in the Computational Materials and ABS Term Sheets (if any), provided by such Underwriter to the Issuer for filing on Form 8-K pursuant to said Section 8A and this Section 8(a)(xi), and which the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Issuer and such Underwriter to be material. The Issuer shall file any corrected Computational Materials or ABS Terms Sheets described in Section 8A hereof as soon as practicable following receipt thereof.
(xi) For a period from the date of this Underwriting Agreement until the retirement of the Series 2003 Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Series 2003 Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s ' parent, such periodic reports, if any, as are required (without regard to the number of holders of Series 2003 Bonds to the extent permitted by and consistent with the Issuer’s 's obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that , and the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic DocumentsCommission. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s 's obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parentabove, such information as required by Section 3.07(g3.07(h) of the Indenture with respect to the Series 2003 Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Oncor Electric Delivery Transition Bond Co LLC)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed signed copy of the Registration StatementStatement as originally filed or, to the extent a signed copy is not available, a conformed copy, certified by an officer of the Issuer to be in the form as originally filed and filed, including all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and the Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Pricing Prospectus and the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act (“Rule 424”) as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) As soon as practicable, but not later than 12 months after the date hereof, the Issuer will make generally available to its security holders, an earnings statement (which need not be audited) that will satisfy the provisions of Section 11(a) of the Securities Act with respect to the Bonds.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of such jurisdictions as the Representatives may designate; provided that neither the Issuer, Mon Power nor MP Renaissance shall be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer, Mon Power or MP Renaissance, as applicable, to be unduly burdensome.
(vi) The Issuer will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Xxx Xxxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to Mon Power and the Issuer.
(vii) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities ActAct (“Rule 172”)), any event relating to or affecting the Issuer, the Bonds or the Recovery Transferred Environmental Control Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or of, the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act172), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act172), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(vviii) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing ProspectusesProspectus, (ii) the issuance and delivery of the Bonds as provided in Section 7 8 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC PSCWV financial advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000)laws, (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement andStatement, except as provided the Pricing Prospectus and Final Prospectus and (v) any amendment or supplement to the Registration Statement, Pricing Prospectus, or Issuer Free Writing Prospectus required to be filed with the Commission to correct any untrue statement of a material fact or omission of any statement necessary to make the statements therein, in Section 8(a)(iv) hereof, the light of the Pricing Package circumstances in which they were made, not misleading, the result of which requires the reforming of any contracts of sale of the Bonds made by the Underwriters (including any damages or other amounts payable in connection with legal and Final Prospectuscontractual liability). If the obligation of the Underwriters to purchase the Bonds terminates this Underwriting Agreement shall be terminated in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 Section 11 or 12 13 hereof, the Issuer shall not be required to pay any amount for any expenses of the Underwriters or SCE (i) for any fees and expenses of counsel for the PSCWV financial advisor, except that the Issuer will reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding $[__________], incurred in contemplation of the performance of this Underwriting Agreement and will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(viiix) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viiix) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb10(z) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ixxi) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that , and the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic DocumentsCommission. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parentabove, such information as required by Section 3.07(g3.07(e) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g3.07(e) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(xxii) The Issuer and SCE will not file any amendment to During a period of one year from the effective date of the Registration Statement or amendment or supplement Statement, to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, Representatives (A) as soon as they are available, a copy copies of each report any reports and financial statements of the Issuer furnished to or filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent Commission, other than such reports and financial statements that are not publicly available on the Commission’s website), XXXXX system; and (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any such additional information concerning the business and financial condition of the Issuer as the Representatives may from time to time reasonably requestrequest (such financial statements to be on a consolidated basis to the extent the accounts of the Issuer are consolidated in reports furnished to its shareholders generally or to the Commission).
(xiixiii) So long The Issuer will file with the Commission such information on Form 10-D or Form 10-K as may be required by Rule 463 under the Bonds are rated by any Rating AgencySecurities Act.
(xiv) If the Issuer elects to rely upon Rule 462(b) under the Securities Act (“Rule 462(b)”), the Issuer will comply shall file a Rule 462(b) Registration Statement with the 17g-5 RepresentationsCommission in compliance with Rule 462(b) by 10:00 P.M., other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect Washington, D.C. time, on the rating date of this Agreement, and the Bonds Issuer shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the Bonds or (ypayment of such fee pursuant to Rule 111(b) any noncompliance arising from under the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereofSecurities Act.
Appears in 1 contract
Samples: Underwriting Agreement (MP Environmental Funding LLC)
Covenants of the Issuer. The Issuer Company covenants and agrees with the several Underwriters thatas follows:
(ia) The Issuer will upon request promptly deliver If and to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with extent the offering of the Bonds.
Remarketed Debentures in the Remarketing is required (ivin the view of counsel for the Company) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 be registered under the Securities Act as in effect at the opinion time of Counsel the Remarketing, the Company shall (Section 5(a) of this Agreement, the “Registration Covenants”):
(i) if the Registration Statement is an “automatic shelf registration statement” on Form S-3ASR and if, at any time prior to the Remarketing Settlement Date, the Company receives from the Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to use the automatic shelf registration statement form, then (A) promptly notify the Remarketing Agent, (B) promptly file a new registration statement or post-effective amendment on the proper form relating to the Remarketed Debentures, in a form satisfactory to the Remarketing Agent, (C) use its best efforts to cause such registration statement or post-effective amendment to be declared effective and (D) promptly notify the Remarketing Agent of such effectiveness; take all other action necessary or appropriate to permit the public offering and sale of the Remarketed Debentures to continue as contemplated in the registration statement that was the subject of the Rule 401(g)(2) notice or for which the Underwriters a prospectus covering Company has otherwise become ineligible. References herein to the Bonds is Registration Statement shall include such new registration statement or post-effective amendment, as the case may be;
(ii) pay the required Commission filing fees relating to the Remarketed Debentures within the time required by law Rule 456 of the Securities Act;
(iii) prepare the Prospectus, file any such Prospectus pursuant to the Securities Act within the period required by the Securities Act and the rules and regulations thereunder and use commercially reasonable efforts to cause, if not already effective, the Registration Statement to be delivered declared effective by the Commission prior to the applicable Remarketing Date (it being understood that, for so long as there is a material business transaction or development that has not yet been publicly disclosed, other than in connection with sales an Optional Remarketing, the Company will not be required to file such Registration Statement or provide such a Prospectus until the Company has publicly disclosed such transaction or development);
(iv) file with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company, be required by an Underwriter the Securities Act or dealer requested by the Commission;
(v) advise the Remarketing Agent promptly after it receives notice thereof, of the time when, (A) prior to the Remarketing Settlement Date, any amendment to the Registration Statement has been filed or becomes effective or, (B) before, on or after the Remarketing Settlement Date, any supplement to the Prospectus or any amended Prospectus has been filed, and in each such case excluding documents filed under the Exchange Act incorporated by reference and in each case of (A) and (B) furnish the Remarketing Agent with copies of such notice;
(vi) file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a) or (c), 14 or 15(d) of the Exchange Act subsequent to the Commencement Date and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Remarketed Debentures (including in circumstances where such requirement may be satisfied pursuant to Rule 172 172), and during such same period to advise the Remarketing Agent, promptly after it receives notice thereof, (A) of the time when any amendment to any Registration Statement has become effective or any supplement to any Prospectus or any amended Prospectus has been filed, (B) of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus, (C) of the suspension of the qualification of the Remarketed Debentures for offering or sale in any jurisdiction, (D) of the initiation or threatening of any proceeding or examination for any such purpose or pursuant to Section 8A of the Securities Act, or (E) of any request by the Commission for the amending or supplementing of any Registration Statement or Prospectus or for additional information; and in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any Prospectus or suspending any such qualification, use promptly its best efforts to obtain its withdrawal;
(vii) if reasonably requested by the Remarketing Agent, prepare a final term sheet for the Remarketed Debentures, containing solely a description of the Remarketed Debentures, in a form agreed to with the Remarketing Agent, and file such final term sheet and all other Issuer Free Writing Prospectuses required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Securities Act within the time required by such Rule;
(viii) furnish promptly to the Remarketing Agent such copies of the following documents in such quantities as the Remarketing Agent shall reasonably request: (a) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits); (b) the Preliminary Prospectus and any amendment or supplement thereto; (c) the Prospectus and any amendment or supplement thereto; (d) any Issuer Free Writing Prospectus and any amendment or supplement thereto, and (e) any document incorporated by reference in the Prospectus (excluding exhibits thereto); and, if at any time when delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act)) is required in connection with the Remarketing, any event relating to or affecting the Issuer, the Bonds or the Recovery Property or development shall have occurred as a result of which (1) the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (Prospectus as defined below) should be set forth in a supplement to, then amended or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus (or in lieu thereof, the Pricing Package notice referred to in Rule 173(a) under the Securities Act) is delivered, not misleading, or (2) if for any other reason it shall be necessary, in the reasonable judgment of the Company, during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Final Exchange Act, or (3) if it shall be necessary during such same period to amend or supplement an Issuer Free Writing Prospectus is delivered in order for the Issuer Free Writing Prospectus, as so amended or supplemented, not to a purchaser conflict with the information then contained in the Registration Statement, then in each case notify the Remarketing Agent and, upon its request, file such document and prepare and furnish without charge to the Remarketing Agent and to any dealer in securities as many copies as the Remarketing Agent may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance or an amended or supplemented Issuer Free Writing Prospectus that will not conflict with the Registration Statement;
(including in circumstances where such requirement may be satisfied ix) during the time between the applicable Commencement Date and the Remarketing Settlement Date, prior to filing with the Commission (a) any amendment to the Registration Statement or supplement to the Prospectus or (b) any Prospectus pursuant to Rule 172 424 under the Securities Act, furnish a copy thereof to the Remarketing Agent; and not file any such amendment or supplement that shall be reasonably disapproved by the Remarketing Agent;
(x) as soon as practicable, but in any event not later than eighteen months, after the date of a Successful Remarketing, to make generally available to its security holders an earnings statement of the Company (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.and
(vxi) The Issuer will furnish take such proper information action as the Remarketing Agent may be lawfully required and otherwise cooperate reasonably request in qualifying order to qualify the Bonds Remarketed Debentures for offer and sale under the blue-sky securities or “blue sky” laws of such jurisdictions as the states Remarketing Agent may reasonably request and will continue such qualifications in effect so long as required for distribution of the United States as the Representatives may designateRemarketed Debentures; provided that in no event shall the Issuer shall not Company be required to qualify as a foreign limited liability company or dealer corporation in securitiesa jurisdiction in which it is not so qualified, to file any consents a general consent to service of process under the laws of in any jurisdiction, jurisdiction or meet to submit to any other requirements deemed by the Issuer to be which it deems unduly burdensome.
(vixii) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with Company shall pay: (i) the costs incident to the preparation and filing by it printing of the Registration Statement, Pricing Prospectus and Final Prospectus (including if any, any amendments and supplements thereto) and Preliminary Prospectus, any Issuer Free Writing ProspectusesProspectus, any Prospectus and any other Remarketing Materials and any amendments or supplements thereto; (ii) the issuance costs of distributing the Registration Statement, if any, any Prospectus and delivery any other Remarketing Materials and any amendments or supplements thereto; (iii) any fees and expenses of qualifying the Remarketed Debentures under the securities laws of the Bonds several jurisdictions as provided in Section 7 hereof 5(a)(xi) and of preparing, printing and distributing a Blue Sky Memorandum, if any (including, without limitation, including any related reasonable fees and disbursements expenses of Counsel counsel to the Remarketing Agent); (iv) any fees charged by investment rating agencies for rating of the Underwriters Remarketed Debentures; (v) all other costs and all trustee, rating agency expenses incident to the performance of the obligations of the Company hereunder and CPUC advisor fees), the Remarketing Agent hereunder; and (iiivi) the qualification reasonable fees and expenses of counsel to the Remarketing Agent in connection with the review by the Financial Industry Regulatory Authority, Inc. of the Bonds under blue-sky laws Remarketed Debentures (including counsel such fees and expenses not to exceed $15,000[_____]).
(b) The Company shall furnish the Remarketing Agent with such information and documents as the Remarketing Agent may reasonably request in connection with the transactions contemplated hereby, (iv) the printing and delivery to make reasonably available to the Underwriters of reasonable quantities Remarketing Agent and any accountant, attorney or other advisor retained by the Remarketing Agent such information, and such access to the appropriate officers, employees and accountants of the Registration Statement andCompany, except as provided that parties would customarily require, and reasonably requested by the Remarketing Agent, in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates connection with a due diligence investigation conducted in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profitsapplicable securities laws.
(viic) During Between the period from applicable Commencement Date and the date of this Underwriting Agreement to the date that is five days after the Closing applicable Remarketing Settlement Date, the Issuer Company will not, without the prior written consent of the RepresentativesRemarketing Agent (which consent may be withheld at the reasonable discretion of the Remarketing Agent), directly or indirectly, sell, offer, contract to sell or contract grant any option to sell, or otherwise dispose of, directly or indirectly, or announce any debt securities which mature more than one year after the offering of, any asset-backed securities (other than applicable Remarketing Settlement Date of the Bonds)Company similar to the Remarketed Debentures.
(viiid) To The Company represents and agrees that, unless it obtains the extentprior written consent of the Remarketing Agent, which consent shall not be unreasonably withheld, and the Remarketing Agent represents and agrees that, unless it obtains the prior written consent of the Company, it has not made and will not make any offer relating to the Remarketed Debentures that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 of the Act), required to be filed by the Company with the Commission or retained by the Company under Rule 433; provided that, if any, that any rating necessary to satisfy the condition set forth prepared and used in accordance with Section 9(bb5(f) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parentAgreement, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer prior written consent shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture deemed given with respect to any final term sheet. Any such free writing prospectus consented to in writing by the BondsCompany or the Remarketing Agent, as the case may be, is hereinafter referred to as a “Permitted Free Writing Prospectus”. To the extent The Company represents that the Issuer’s obligations are terminated or limited by it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an amendment to Section 3.07(g) “issuer free writing prospectus” (as defined in Rule 433 of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if has complied and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance requirements of Rules 164 and 433 of the 17g-5 Representations Securities Act applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
(e) The Company will prepare a final term sheet relating to the Remarketed Debentures, containing only information that would not have a material adverse effect on describes the rating final terms of the Bonds or Remarketed Debentures after providing the Bonds or Remarketing Agent and its legal counsel with a reasonable opportunity to review and comment on such final term sheet (ysuch final term sheet to be in form and substance as last reviewed by the Remarketing Agent and the Company), and will file such final term sheet within the period required by Rule 433(d) any noncompliance arising from the breach by an Underwriter of the representations Securities Act following the date such final terms have been established for the Remarketed Debentures. Any such final term sheet is an Issuer Free Writing Prospectus and warranties and covenants set forth in Section 13 hereofa Permitted Free Writing Prospectus for purposes of this Agreement.
Appears in 1 contract
Samples: Purchase Contract and Pledge Agreement (American Electric Power Co Inc)
Covenants of the Issuer. The Issuer Company covenants and agrees with the several Underwriters thatas follows:
(ia) The Issuer will upon request promptly deliver If and to the Representatives and Counsel to extent the Underwriters a conformed copy offering of the Registration Statement, certified by an officer Remarketed Notes in the Remarketing is required (in the view of counsel for the Issuer Company) to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 registered under the Securities Act as soon as practicable and will advise in effect at the Underwriters time of any stop order suspending the effectiveness Remarketing, the Company shall (Section 5(a) of this Agreement, the “Registration Covenants”):
(i) if the Registration Statement is an “automatic shelf registration statement” on Form S-3ASR and if, at any time prior to the Remarketing Settlement Date, the Company receives from the Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to use the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will automatic shelf registration statement form, then (A) promptly notify the Remarketing Agent, (B) promptly file a new registration statement or post-effective amendment on the proper form relating to the Remarketed Notes, in a form satisfactory to the Remarketing Agent, (C) use its reasonable best efforts to prevent cause such registration statement or post-effective amendment to be declared effective and (D) promptly notify the issuance Remarketing Agent of such effectiveness; take all other reasonable action necessary or appropriate to permit the public offering and sale of the Remarketed Notes to continue as contemplated in the registration statement that was the subject of the Rule 401(g)(2) notice or for which the Company has otherwise become ineligible. References herein to the Registration Statement shall include such new registration statement or post-effective amendment, as the case may be;
(ii) pay the required Commission filing fees relating to the Remarketed Notes within the time required by Rule 456 of the Securities Act;
(iii) prepare the Prospectus, file any such stop order and, if issued, Prospectus pursuant to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act within the period required by the Securities Act and the Rules and Regulations and use commercially reasonable efforts to cause, if not already effective, the Registration Statement to be declared effective by the Commission prior to the applicable Remarketing Date (it being understood that, for so long as there is a material business transaction or development that has not yet been publicly disclosed, other than in connection with an Optional Remarketing, the Company will not be required to file such Registration Statement or provide such a Prospectus until the Company has publicly disclosed such transaction or development);
(iv) file with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company, be required by the Securities Act or requested by the Commission;
(v) advise the Remarketing Agent promptly after it receives notice thereof, of the time when, (A) prior to the Remarketing Settlement Date, any amendment to the Registration Statement has been filed or becomes effective or, (B) before, on or after the Remarketing Settlement Date, any supplement to the Prospectus or any amended Prospectus has been filed, and in each such case excluding documents filed under the Exchange Act incorporated by reference and in each case of (A) and (B) furnish the Remarketing Agent with copies of such notice;
(vi) file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a) or (c), 14 or 15(d) of the Exchange Act subsequent to the Commencement Date and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer Remarketed Notes (including in circumstances where such requirement may be satisfied pursuant to Rule 172 172), and during such same period to advise the Remarketing Agent, promptly after it receives notice thereof, (A) of the time when any amendment to any Registration Statement has become effective or any supplement to any Prospectus or any amended Prospectus has been filed, (B) of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus, (C) of the suspension of the qualification of the Remarketed Notes for offering or sale in any jurisdiction, (D) of the initiation or threatening of any proceeding or examination for any such purpose or pursuant to Section 8A of the Securities Act, or (E) of any request by the Commission for the amending or supplementing of any Registration Statement or Prospectus or for additional information; and in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any Prospectus or suspending any such qualification, use promptly its reasonable best efforts to obtain its withdrawal;
(vii) if reasonably requested by the Remarketing Agent, prepare a final term sheet for the Remarketed Notes, containing solely a description of the Remarketed Notes, in a form agreed to with the Remarketing Agent, and file such final term sheet and all other Permitted Free Writing Prospectuses required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Securities Act within the time required by such Rule;
(viii) furnish promptly to the Remarketing Agent such copies of the following documents in such quantities as the Remarketing Agent shall reasonably request: (a) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits); (b) the Preliminary Prospectus and any amendment or supplement thereto; (c) the Prospectus and any amendment or supplement thereto; (d) any Permitted Free Writing Prospectus and any amendment or supplement thereto, and (e) any document incorporated by reference in the Prospectus (excluding exhibits thereto); and, if at any time when delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act)) is required in connection with the Remarketing, any event relating to or affecting the Issuer, the Bonds or the Recovery Property or development shall have occurred as a result of which (1) the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (Prospectus as defined below) should be set forth in a supplement to, then amended or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus (or in lieu thereof, the Pricing Package notice referred to in Rule 173(a) under the Securities Act) is delivered, not misleading, or (2) if for any other reason it shall be necessary, in the reasonable judgment of the Company, during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Final Exchange Act, or (3) if it shall be necessary during such same period to amend or supplement a Permitted Free Writing Prospectus is delivered in order for a Permitted Free Writing Prospectus, as so amended or supplemented, not to a purchaser conflict with the information then contained in the Registration Statement, then in each case notify the Remarketing Agent and, upon its request, file such document and prepare and furnish without charge to the Remarketing Agent and to any dealer in securities as many copies as the Remarketing Agent may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance or an amended or supplemented Permitted Free Writing Prospectus that will not conflict with the Registration Statement;
(including in circumstances where such requirement may be satisfied ix) during the time between the applicable Commencement Date and the Remarketing Settlement Date, prior to filing with the Commission (a) any amendment to the Registration Statement or supplement to the Prospectus or (b) any Prospectus pursuant to Rule 172 424 under the Securities Act, furnish a copy thereof to the Remarketing Agent; and not file any such amendment or supplement that shall be reasonably disapproved by the Remarketing Agent;
(x) as soon as practicable, but in any event not later than 18 months, after the date of a Successful Remarketing, to make generally available to its security holders an earnings statement of the Company (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.and
(vxi) The Issuer will furnish take such proper information action as the Remarketing Agent may be lawfully required and otherwise cooperate reasonably request in qualifying order to qualify the Bonds Remarketed Notes for offer and sale under the blue-sky securities or “blue sky” laws of the such states and other jurisdictions of the United States as the Representatives Remarketing Agent may designatereasonably request and to continue such qualifications in effect so long as required for distribution of the Remarketed Notes; provided that in no event shall the Issuer shall not Company be required to qualify as a foreign limited liability company or dealer corporation in securitiesa jurisdiction in which it is not so qualified, to file any consents a consent to service of process under the laws of in any jurisdiction, jurisdiction or meet to file annual reports or to submit to any other requirements deemed by the Issuer to be which it deems unduly burdensome.
(vib) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with Company shall pay: (i) the costs incident to the preparation and filing by it printing of the Registration Statement, Pricing if any, any Preliminary Prospectus, any Permitted Free Writing Prospectus, any Prospectus and Final Prospectus (including any other Remarketing Materials and any amendments and or supplements thereto) and any Issuer Free Writing Prospectuses, ; (ii) the issuance costs of distributing the Registration Statement, if any, any Prospectus and delivery any other Remarketing Materials and any amendments or supplements thereto; (iii) any fees and expenses of qualifying the Remarketed Notes under the securities laws of the Bonds several jurisdictions as provided in Section 7 hereof 5(a)(xi) and of preparing, printing and distributing a Blue Sky Memorandum, if any (including, without limitation, including any related reasonable fees and disbursements expenses of Counsel for counsel to the Underwriters and all trustee, rating agency and CPUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees Remarketing Agent not to exceed $15,000[ ]), ; (iv) any fees charged by investment rating agencies for rating of the printing Remarketed Notes; (v) all other costs and delivery expenses incident to the Underwriters of reasonable quantities performance of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, obligations of the Pricing Package Company hereunder and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 Remarketing Agent hereunder; and (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (ivi) will reimburse the Underwriters for the reasonable fees and disbursements expenses of Counsel for counsel to the UnderwritersRemarketing Agent in connection with the review by the Financial Industry Regulatory Authority, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation Inc. of the performance of this Underwriting Agreement. The Issuer shall Remarketed Notes (such fees and expenses not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profitsexceed $[_____]).
(viic) During The Company shall furnish the period from Remarketing Agent with such information and documents as the date of this Underwriting Agreement Remarketing Agent may reasonably request in connection with the transactions contemplated hereby, and make reasonably available to the date Remarketing Agent and any accountant, attorney or other advisor retained by the Remarketing Agent such information, and such access to the appropriate officers, employees and accountants of the Company, that is five days after parties would customarily require, and reasonably requested by the Closing Remarketing Agent, in connection with a due diligence investigation conducted in accordance with applicable securities laws.
(d) Between the applicable Commencement Date and the applicable Remarketing Settlement Date, the Issuer Company will not, without the prior written consent of the RepresentativesRemarketing Agent (which consent may be withheld at the reasonable discretion of the Remarketing Agent), directly or indirectly, sell, offer, contract to sell or contract grant any option to sell, or otherwise dispose of, directly or indirectly, or announce any debt securities of the offering of, any asset-backed securities (other Company similar to the Remarketed Notes which mature more than one year after the Bonds)applicable Remarketing Settlement Date.
(viiie) To The Company represents and agrees that, unless it obtains the extentprior written consent of the Remarketing Agent, which consent shall not be unreasonably withheld, and the Remarketing Agent represents and agrees that, unless it obtains the prior written consent of the Company, it has not made and will not make any offer relating to the Remarketed Notes that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 of the Act), required to be filed by the Company with the Commission or retained by the Company under Rule 433; provided that, if any, that any rating necessary to satisfy the condition set forth prepared and used in accordance with Section 9(bb5(f) of this Underwriting Agreement is conditioned upon Agreement, such prior written consent shall be deemed given with respect to any final term sheet. Any such free writing prospectus consented to in writing by the furnishing of documents Company or the taking Remarketing Agent, as the case may be, is hereinafter referred to as a “Permitted Free Writing Prospectus”. The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus” (as defined in Rule 433 of other actions by the Issuer on or after Securities Act) and has complied and will comply in all material respects with the Closing Daterequirements of Rules 164 and 433 of the Securities Act applicable to any Permitted Free Writing Prospectus, including timely filing with the Issuer shall furnish such documents Commission where required, legending and take such other actionsrecord keeping.
(ixf) For The Company will prepare a period from final term sheet relating to the date of this Underwriting Agreement until Remarketed Notes, containing only information that describes the retirement final terms of the Bonds or until Remarketed Notes after providing the Remarketing Agent and its legal counsel with a reasonable opportunity to review and comment on such time final term sheet (such final term sheet to be in form and substance as last reviewed by the Underwriters shall cease to maintain a secondary market in Remarketing Agent and the Bonds, whichever occurs first, the Issuer shall file with the CommissionCompany), and to will file such final term sheet within the extent permitted period required by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(dRule 433(d) of the Exchange Act; provided that Securities Act following the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the date such final terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel have been established for the Underwriters (“Counsel Remarketed Notes. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for the Underwriters”), shall reasonably object by written notice to SCE and the Issuerpurposes of this Agreement.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Samples: Purchase Contract and Pledge Agreement (Southern Co)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters (as defined below) a conformed signed copy of the Registration StatementStatement as originally filed or, to the extent a signed copy is not available, a conformed copy, certified by an officer of the Issuer to be in the form as originally filed and filed, including all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and the Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act (“Rule 424”) as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) As soon as practicable, but not later than 12 months after the date hereof, the Issuer will make generally available to its security holders, an earnings statement (which need not be audited) that will satisfy the provisions of Section 11(a) of the Securities Act with respect to the Bonds.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of such jurisdictions as the Representatives may designate; provided that neither the Issuer nor Potomac Edison shall be required to qualify as a foreign limited liability company or corporation, as the case may be, or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements reasonably deemed by the Issuer or Potomac Edison, as applicable, to be unduly burdensome.
(vi) The Issuer will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Xxx Xxxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to Potomac Edison and the Issuer.
(vii) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities ActAct (“Rule 172”)), any event relating to or affecting the Issuer, the Bonds or the Recovery Environmental Control Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or of, the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act172), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act172), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(vviii) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing ProspectusesProspectus, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC PSCWV financial advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000)laws, (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement andStatement, except as provided the Pricing Prospectus and Final Prospectus and (v) any amendment or supplement to the Registration Statement, Pricing Prospectus, or Issuer Free Writing Prospectus required to be filed with the Commission to correct any untrue statement of a material fact or omission of any statement necessary to make the statements therein, in Section 8(a)(iv) hereof, the light of the Pricing Package circumstances in which they were made, not misleading, the result of which requires the reforming of any contracts of sale of the Bonds made by the Underwriters (including any damages or other amounts payable in connection with legal and Final Prospectuscontractual liability). If the obligation of the Underwriters to purchase the Bonds terminates this Underwriting Agreement shall be terminated in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, Section 10 or 12 hereof, the Issuer shall not be required to pay any amount for any expenses of the Underwriters or SCE (i) for any fees and expenses of counsel for the PSCWV financial advisor, except that the Issuer will reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding $100,000, incurred in contemplation of the performance of this Underwriting Agreement and will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(viiix) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viiix) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb9(z) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ixxi) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commissionshall, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parentabove, such information as required by Section 3.07(g3.07(e) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g3.07(e) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(xxii) The Issuer and SCE will not file any amendment to During a period of one year from the effective date of the Registration Statement or amendment or supplement Statement, to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, Representatives (A) as soon as they are available, a copy copies of each report any reports and financial statements of the Issuer furnished to or filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent Commission, other than such reports and financial statements that are not publicly available on the Commission’s website), XXXXX system; and (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any such additional information concerning the business and financial condition of the Issuer as the Representatives may from time to time reasonably requestrequest (such financial statements to be on a consolidated basis to the extent the accounts of the Issuer are consolidated in reports furnished to its shareholders generally or to the Commission).
(xiixiii) So long The Issuer will file with the Commission such information on Form 10-D or Form 10-K as may be required by Rule 463 under the Bonds are rated by any Rating AgencySecurities Act.
(xiv) If the Issuer elects to rely upon Rule 462(b) under the Securities Act (“Rule 462(b)”), the Issuer will comply shall file a Rule 462(b) Registration Statement with the 17g-5 RepresentationsCommission in compliance with Rule 462(b) by 10:00 P.M., other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect Washington, D.C. time, on the rating date of this Agreement, and the Bonds Issuer shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the Bonds or (ypayment of such fee pursuant to Rule 111(b) any noncompliance arising from under the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereofSecurities Act.
Appears in 1 contract
Samples: Underwriting Agreement (MP Environmental Funding LLC)
Covenants of the Issuer. The Issuer hereby covenants to and agrees with the several Underwriters Agent (on their own behalf and on behalf of the Purchasers) that it will:
(a) for a period of two years following the Closing Date, use its commercially reasonable efforts to remain a “reporting issuer” under Securities Laws in at least one jurisdiction of Canada not in material default of any requirement of such Securities Laws; provided that this covenant shall not prevent the Issuer from completing any transaction which would result in the Issuer ceasing to be a “reporting issuer” so long as each holder of FT Shares, FT Warrants, Compensation Warrants and Warrant Shares, receive securities of an entity which is listed on a stock exchange or over-the-counter market or cash or the holders of the FT Shares have approved the transaction in accordance with the requirements of applicable Law;
(b) ensure all information and documentation relating to the Issuer and its Affiliates and the Offering provided to the Agent, directly or indirectly, orally or in writing, by the Issuer and its Affiliates, in connection with the Agent’s engagement hereunder will be true, accurate and complete in all material respects and not misleading in any material respects and will not omit to state any fact or information which would be material to the Agent performing the services contemplated herein;
(c) at the reasonable request of the Agent and upon adequate notice, make members of its senior management team and certain of its directors available for meetings with potential investors;
(d) duly execute and deliver the Subscription Agreements on behalf of the Issuer at or prior to the Closing Time, and comply with and satisfy all terms, conditions and covenants therein contained to be complied with or satisfied by the Issuer;
(e) fulfill or cause to be fulfilled, at or prior to the Closing Time, each of the conditions required to be fulfilled by it set out in Sections 10 and 11;
(f) fulfill all legal requirements to permit the creation and issuance of the FT Shares, the FT Warrants and the Compensation Warrants at the Closing Time and the issuance of the Warrant Shares and Common Shares issuable on exercise of the FT Warrants and the Compensation Warrants, respectively, all as contemplated by the Operative Documents, and file or cause to be filed all forms, notices, documents, applications, undertakings or certificates required to be filed by the Issuer in connection with the Offering so that the distribution of such securities may lawfully occur without the necessity of filing a prospectus in Canada or similar document in any other jurisdiction;
(g) ensure that:, at the Closing Time, the FT Shares and FT Warrants shall be duly and validly authorized, created and issued, as applicable, and shall have the attributes corresponding in all material respects to the description thereof as set forth in this Agreement, the Subscription Agreements and the FT Warrant Indenture, as applicable;
(h) ensure that, at all times prior the expiry of the FT Warrants, a sufficient number of Warrant Shares are allotted and reserved for issuance upon the due exercise of the FT Warrants in accordance with their terms including receipt of payment therefor, and when so issued, shall be issued as fully paid and non-assessable Common Shares;
(i) The Issuer will upon request promptly deliver ensure that, at the Closing Time, the Compensation Warrants shall be duly and validly created, authorized and issued and shall have the attributes corresponding in all material respects to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form description thereof as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement tothis Agreement and the Compensation Warrants Certificates;
(j) ensure that, or an amendment at all times prior to the expiry of the Pricing Package or Compensation Warrants, a sufficient number of Common Shares, are allotted and reserved for issuance upon the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light due exercise of the circumstances Compensation Warrants in accordance with their terms including receipt of payment therefor, and when it is delivered to a purchaser so issued, shall be issued as fully paid and non-assessable Common Shares;
(including in circumstances where such requirement may be satisfied pursuant to Rule 172 under k) ensure that the Securities Act), all required filings with the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing Exchange have been made and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 all required approvals of the Exchange Actfor the Offering has been obtained on or prior to the Closing Date and, which will supplement or amend until the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light expiry of the circumstances when FT Warrants and the Pricing Package or Compensation Warrants, use its commercially reasonable efforts to ensure that the Final Prospectus is delivered to a purchaser FT Shares (including in circumstances where the Warrant Shares and the Common Shares issuable on exercise of the FT Warrants and Compensation Warrants, respectively) remain listed for trading on the Exchange or such requirement other principal stock exchange or over-the-counter market as such shares may be satisfied pursuant to Rule 172 under listed or quoted (as the Securities Actcase may be), not misleading; provided that should this covenant shall not prevent the Issuer from completing any transaction which would result in the Issuer ceasing to be listed on the Exchange or such event relate solely to other stock exchange or over-the-counter market as the activities of any FT Shares (including the Warrant Shares and the Common Shares issuable on exercise of the UnderwritersFT Warrants and the Compensation Warrants, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(drespectively) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying listed or quoted (as the Bonds for offer and sale under the blue-sky laws case may be) so long as each holder of FT Shares, FT Warrants, Compensation Warrants, Warrant Shares issuable on exercise of the states FT Warrants, or the Common Shares issuable on exercise of the United States as Compensation Warrants receive securities of an entity which is listed on a stock exchange or over-the-counter market or cash or the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it holders of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) Common Shares have approved the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates transaction in accordance with the provisions requirements of Sections 7 all applicable Laws;
(but excluding terminations arising thereunder out l) not take any action which would reasonably be expected to result in the delisting or suspension of the FT Shares (including the Warrant Shares and the Common Shares issuable on exercise of the Compensation Warrants, upon due exercise) on or from the Exchange or such other principal stock exchange or over-the-counter market as such shares may be listed or quoted (as the case may be); provided that this covenant shall not prevent the Issuer from completing any transaction which would result in the Issuer ceasing to be listed on the Exchange or such other stock exchange or over-the-counter market as the FT Shares (including the Warrant Shares and the Common Shares issuable on exercise of the Compensation Warrants) may be listed or quoted (as the case may be) so long as each holder of FT Warrants, Compensation Warrants, Warrant Shares or the Common Shares issuable on exercise of the Compensation Warrants, receive securities of an Underwriter default), 9, 10 entity which is listed on a stock exchange or 12 hereof, over-the-counter market or cash or the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation holders of the performance Common Shares have approved the transaction in accordance with the requirements of this Underwriting Agreement. The Issuer shall not in applicable Laws;
(m) not, at any event be liable time prior to any Closing, halt the trading of the several Underwriters for damages Common Shares on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will notExchange, without the prior written consent of the RepresentativesAgent, offersuch consent not to be unreasonably withheld, sell delayed or contract conditional;
(n) in the event any Person acting or purporting to sellact for the Issuer establishes a claim from the Agent for any brokerage or agency fee in connection with the transactions contemplated herein, or otherwise dispose ofindemnify and hold harmless the Agent with respect thereto and with respect to all costs reasonably incurred in the defence thereof unless such claim is made by any Selling Firm;
(o) not, directly or indirectly, issue, negotiate or enter into any agreement to sell or issue or announce the offering issue of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb) Common Shares of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or other securities convertible into Common Shares, for a period of 30 days after the Closing Date, without the prior written consent of the Agent, such consent not to be unreasonably withheld, delayed or conditional, other than: (i) as contemplated herein; (ii) pursuant to the grant or exercise of options pursuant to the Issuer’s stock option plan or other similar share compensation arrangements; (iii) pursuant to the exercise or conversion, as the case may be, of warrants, convertible debt or securities of the Issuer shall furnish such documents and take such outstanding on the date hereof; (iv) in connection with a bona fide acquisition by the Issuer of the shares or assets of other actions.corporations or entities; (v) pursuant to obligations in respect of existing mineral property agreements; or (vi); in connection with property or share acquisitions in the normal course of business;
(ixp) For issue a ‘black-out’ direction to the directors and officers of the Issuer, to be in effect during the period from commencing on the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available ending on the website associated with day that is 30 days after the Issuer’s parentClosing Date. Notwithstanding the foregoing, such periodic reports, if any, as are required (without regard to nothing shall prevent the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 directors or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indentureofficers, or otherwisetheir affiliates, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report from transferring securities of the Issuer filed with the Commission under the Exchange Act or mailed (a) to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.affiliate;
Appears in 1 contract
Samples: Agency Agreement
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Prior to the termination of the offering of the Transition Bonds, the Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy not file any amendment of the Registration Statement, certified by an officer of Statement or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus unless the Issuer has furnished you a copy for your review prior to be in the form as originally filed filing and all amendments thereto.
(ii) The Issuer will deliver not file any such proposed amendment or supplement to which you reasonably object. Subject to the Underwritersforegoing sentence, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus Prospectus, properly completed, and any amendment or supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424 under 424(b) within the Securities Act as soon as practicable time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Issuer will promptly advise the Underwriters Representative (A) when the Final Prospectus, and any amendment or supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (B) when, prior to termination of the offering of the Transition Bonds, any amendment to the Registration Statement shall have been filed or become effective, (C) of any request by the Commission for any amendment of the Registration Statement or amendment or supplement to the Final Prospectus or for any additional information, (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding therefor for that purpose, (E) of which the receipt by the Issuer shall have received noticeof any notification with respect to the suspension of the qualification of the Transition Bonds for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and (F) of the happening of any event during the period mentioned in subparagraph (ii) below. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(ivii) If, during such period of at any time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters when a prospectus covering relating to the Transition Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or occurs as a result of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package as then amended or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances when under which they were made not misleading, or if it shall be necessary to amend the Pricing Package Registration Statement or supplement the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under comply with the Securities Act)Act or the Exchange Act or the respective rules thereunder, not misleading; the Issuer promptly will (x) promptly notify the Representative of such event, (y) prepare and file with the Commission an amendment or supplement which will correct such statement or omission or effect such compliance, provided that should prior to filing any amendment or supplement the Issuer will provide the Representative with a copy for its review and will not file any such event relate solely proposed amendment or supplement to which the Representative reasonably objects, and (z) supply any supplemented Final Prospectus to the activities of any of the Underwriters, then Underwriters in such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) abovequantities as they may reasonably request.
(viii) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required file or to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as a current report on Form 8-K setting forth all Computational Materials, ABS Term Sheets and Collateral Term Sheets (collectively, "Investor Materials") provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To Issuer by any Underwriter within the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, applicable time periods allotted for such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC filing pursuant to the Financing Order includingNo-Action Letter of May 20, 1994, issued by the Commission to Kidder, Peabody Acceptance Corporation I, Kidder, Xxxxodx & Xx. Incorporated and Kidder Structured Asset Corporation, as made appxxxxxxe to other issuers and underwriters by the Commission in response to the request of the Public Securities Association dated May 24, 1994 (collectively, the "Kidder/PSA Letter"), and the requirements of the Xx-Xxtion Letter of February 17, 1995, issued by the Commission to the Public Securities Association (the "PSA Letter" and, together with the Kidder/PSA Letter, the "No-Action Letters"). For purposes hereof, "Computational Materials" shall have the meaning given such term in the No-Action Letters, but not limited to, any issuance advice letter shall include only those Computational Materials that have been prepared or any routine or non-routine True-Up Adjustment filings, and (C) from time delivered to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated prospective investors by any Rating AgencyUnderwriter. For purposes hereof, "ABS Term Sheets" and "Collateral Term Sheets" shall have the Issuer will comply with meanings given such terms in the 17g-5 Representations, other than (x) PSA Letter but shall include only those ABS Term Sheets or Collateral Term Sheets that have been prepared or delivered to prospective investors by any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereofUnderwriter.
Appears in 1 contract
Samples: Underwriting Agreement (PSE&G Transition Funding II LLC)
Covenants of the Issuer. The Issuer Company covenants and agrees with the several Underwriters thatas follows:
(ia) The Issuer will upon request promptly deliver If and to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with extent the offering of the Bonds.
Remarketed Notes in the Remarketing is required (ivin the view of counsel for the Company) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 be registered under the Securities Act as in effect at the opinion time of Counsel the Remarketing, the Company shall (Section 5(a) of this agreement the “Registration Covenants”):
(i) if the Registration Statement is an “automatic shelf registration statement” on Form S-3ASR and if, at any time prior to the Remarketing Settlement Date, the Company receives from the Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to use the automatic shelf registration statement form, then (A) promptly notify the Remarketing Agent, (B) promptly file a new registration statement or post-effective amendment on the proper form relating to the Remarketed Notes, in a form satisfactory to the Remarketing Agent, (C) use its best efforts to cause such registration statement or post-effective amendment to be declared effective and (D) promptly notify the Remarketing Agent of such effectiveness; take all other action necessary or appropriate to permit the public offering and sale of the Remarketed Notes to continue as contemplated in the registration statement that was the subject of the Rule 401(g)(2) notice or for which the Underwriters a prospectus covering Company has otherwise become ineligible. References herein to the Bonds is Registration Statement shall include such new registration statement or post-effective amendment, as the case may be;
(ii) pay the required Commission filing fees relating to the Remarketed Notes within the time required by law Rule 456(b)(1) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act;
(iii) prepare the Prospectus, file any such Prospectus pursuant to the Securities Act within the period required by the Securities Act and the rules and regulations thereunder and use commercially reasonable efforts to cause, if not already effective, the Registration Statement to be delivered declared effective by the Commission prior to the applicable Remarketing Date (it being understood that, for so long as there is a material business transaction or development that has not yet been publicly disclosed, other than in connection with sales an Optional Remarketing, the Company will not be required to file such Registration Statement or provide such a Prospectus until the Company has publicly disclosed such transaction or development);
(iv) file with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company, be required by an Underwriter the Securities Act or dealer requested by the Commission;
(v) advise the Remarketing Agent promptly after it receives notice thereof, of the time when, (A) prior to the Remarketing Settlement Date, any amendment to the Registration Statement has been filed or becomes effective or, (B) before, on or after the Remarketing Settlement Date, any supplement to the Prospectus or any amended Prospectus has been filed, and in each case of (A) and (B) furnish the Remarketing Agent with copies thereof;
(vi) file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a) or (c), 14 or 15(d) of the Exchange Act subsequent to the Commencement Date and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Remarketed Notes (including in circumstances where such requirement may be satisfied pursuant to Rule 172 172), and during such same period to advise the Remarketing Agent, promptly after it receives notice thereof, (A) of the time when any amendment to any Registration Statement has become effective or any supplement to any Prospectus or any amended Prospectus has been filed, (B) of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus, (C) of the suspension of the qualification of the Remarketed Notes for offering or sale in any jurisdiction, (D) of the initiation or threatening of any proceeding or examination for any such purpose or pursuant to Section 8A of the Securities Act, or (E) of any request by the Commission for the amending or supplementing of any Registration Statement or Prospectus or for additional information; and in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any Prospectus or suspending any such qualification, use promptly its best efforts to obtain its withdrawal;
(vii) if reasonably requested by the Remarketing Agent, prepare a final term sheet for the Remarketed Notes, containing solely a description of the Remarketed Notes, in a form agreed to with the Remarketing Agent, and file such final term sheet and all other Issuer Free Writing Prospectuses required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Securities Act within the time required by such Rule;
(viii) furnish promptly to the Remarketing Agent such copies of the following documents in such quantities as the Remarketing Agent shall reasonably request: (a) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits); (b) the Preliminary Prospectus and any amendment or supplement thereto; (c) the Prospectus and any amended or supplement thereto; (d) any Issuer Free Writing Prospectus and any amendment or supplement thereto, and (e) any document incorporated by reference in the Prospectus (excluding exhibits thereto); and, if at any time when delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act)) is required in connection with the Remarketing, any event relating to or affecting the Issuer, the Bonds or the Recovery Property or development shall have occurred as a result of which (1) the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (Prospectus as defined below) should be set forth in a supplement to, then amended or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus (or in lieu thereof, the Pricing Package notice referred to in Rule 173(a) under the Securities Act) is delivered, not misleading, or (2) if for any other reason it shall be necessary, in the reasonable judgment of the Company, during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Final Exchange Act, or (3) if it shall be necessary during such same period to amend or supplement an Issuer Free Writing Prospectus is delivered in order for the Issuer Free Writing Prospectus, as so amended or supplemented, not to a purchaser conflict with the information then contained in the Registration Statement, then in each case notify the Remarketing Agent and, upon its request, file such document and prepare and furnish without charge to the Remarketing Agent and to any dealer in securities as many copies as the Remarketing Agent may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance or an amended or supplemented Issuer Free Writing Prospectus that will not conflict with the Registration Statement;
(including in circumstances where such requirement may be satisfied ix) during the time between the applicable Commencement Date and the Remarketing Settlement Date, prior to filing with the Commission (a) any amendment to the Registration Statement or supplement to the Prospectus or (b) any Prospectus pursuant to Rule 172 424 under the Securities Act, furnish a copy thereof to the Remarketing Agent; and not file any such amendment or supplement that shall be reasonably disapproved by the Remarketing Agent;
(x) as soon as practicable, but in any event not later than eighteen months, after the date of a Successful Remarketing, to make generally available to its security holders an earnings statement of the Company (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.and
(vxi) The Issuer will furnish take such proper information action as the Remarketing Agent may be lawfully required and otherwise cooperate reasonably request in qualifying order to qualify the Bonds Remarketed Notes for offer and sale under the blue-sky securities or “blue sky” laws of such jurisdictions as the states Remarketing Agent may reasonably request and will continue such qualifications in effect so long as required for distribution of the United States as the Representatives may designateRemarketed Notes; provided that in no event shall the Issuer shall not Company be required to qualify as a foreign limited liability company corporation or dealer in securities, to file any consents a general consent to service of process under the laws of in any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vib) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with Company shall pay: (i) the costs incident to the preparation and filing by it printing of the Registration Statement, Pricing Prospectus and Final Prospectus (including if any, any amendments and supplements thereto) and Preliminary Prospectus, any Issuer Free Writing ProspectusesProspectus, any Prospectus and any other Remarketing Materials and any amendments or supplements thereto; (ii) the issuance costs of distributing the Registration Statement, if any, any Prospectus and delivery any other Remarketing Materials and any amendments or supplements thereto; (iii) any fees and expenses of qualifying the Remarketed Notes under the securities laws of the Bonds several jurisdictions as provided in Section 7 hereof 5(a)(x) and of preparing, printing and distributing a Blue Sky Memorandum, if any (including, without limitation, including any related reasonable fees and disbursements expenses of Counsel for counsel to the Underwriters and all trustee, rating agency and CPUC advisor feesRemarketing Agent), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), ; (iv) any fees charged by investment rating agencies for rating of the printing Remarketed Notes; (v) all other costs and delivery expenses incident to the Underwriters of reasonable quantities performance of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, obligations of the Pricing Package Company hereunder and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 Remarketing Agent hereunder; and (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (ivi) will reimburse the Underwriters for the reasonable fees and disbursements expenses of Counsel for counsel to the UnderwritersRemarketing Agent in connection with the review by the Financial Industry Regulatory Authority, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation Inc. of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profitsRemarketed Notes.
(viic) During The Company shall furnish the period from Remarketing Agent with such information and documents as the date of this Underwriting Agreement Remarketing Agent may reasonably request in connection with the transactions contemplated hereby, and to make reasonably available to the date Remarketing Agent and any accountant, attorney or other advisor retained by the Remarketing Agent such information, and such access to the appropriate officers, employees and accountants of the Company, that is five days after parties would customarily require, and reasonably requested by the Closing Remarketing Agent, in connection with a due diligence investigation conducted in accordance with applicable securities laws.
(d) Between the applicable Commencement Date and the applicable Remarketing Settlement Date, the Issuer Company will not, without the prior written consent of the RepresentativesRemarketing Agent (which consent may be withheld at the reasonable discretion of the Remarketing Agent), directly or indirectly, sell, offer, contract to sell or contract grant any option to sell, or otherwise dispose of, directly or indirectly, or announce any debt securities which mature more than one year after the offering of, any asset-backed securities (other than applicable Remarketing Settlement Date of the Bonds)Company similar to the Remarketed Notes.
(viiie) To The Company represents and agrees that, unless it obtains the extentprior written consent of the Remarketing Agent, which consent shall not be unreasonably withheld, and the Remarketing Agent represents and agrees that, unless it obtains the prior written consent of the Company, it has not made and will not make any offer relating to the Remarketed Notes that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 of the Act), required to be filed by the Company with the Commission or retained by the Company under Rule 433; provided that, if any, that any rating necessary to satisfy the condition set forth prepared and used in accordance with Section 9(bb5(f) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parentAgreement, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer prior written consent shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture deemed given with respect to any final term sheet. Any such free writing prospectus consented to in writing by the BondsCompany or the Remarketing Agent, as the case may be, is hereinafter referred to as a “Permitted Free Writing Prospectus”. To the extent The Company represents that the Issuer’s obligations are terminated or limited by it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an amendment to Section 3.07(g) “issuer free writing prospectus” (as defined in Rule 433 of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if has complied and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance requirements of Rules 164 and 433 of the 17g-5 Representations Securities Act applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
(f) The Company will prepare a final term sheet relating to the Remarketed Notes, containing only information that would not have a material adverse effect on describes the rating final terms of the Bonds or Remarketed Notes after providing the Bonds or Remarketing Agent and its legal counsel with a reasonable opportunity to review and comment on such final term sheet (ysuch final term sheet to be in form and substance as last reviewed by the Remarketing Agent and the Company), and will file such final term sheet within the period required by Rule 433(d) any noncompliance arising from the breach by an Underwriter of the representations Securities Act following the date such final terms have been established for the Remarketed Notes. Any such final term sheet is an Issuer Free Writing Prospectus and warranties and covenants set forth in Section 13 hereofa Permitted Free Writing Prospectus for purposes of this Agreement.
Appears in 1 contract
Samples: Purchase Contract and Pledge Agreement (United Technologies Corp /De/)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters Initial Purchasers that:
(ia) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package Offering Memorandum or any amendment thereof or supplement thereto unless the Initial Purchasers previously shall have been advised thereof and been furnished a copy thereof prior to the proposed amendment or supplement and shall not have reasonably objected in writing within five (5) Business Days after being furnished a copy thereof. If, at any time during the period beginning on the date hereof and ending on the earlier of (i) the date on which Initial Purchasers shall have completed the initial resale of all of the Notes and (ii) ninety (90) days after the date of this Agreement, any event occurs as a result of which the Additional Disclosure Documents, the Preliminary Offering Memorandum or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement Offering Memorandum as then amended or supplements or supplemented would include an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act)which they were made, not misleading; , or if it is necessary at any such time to amend or supplement the Additional Disclosure Documents, the Preliminary Offering Memorandum or the Offering Memorandum to comply with any Applicable Law, the Issuer shall promptly notify the Initial Purchasers thereof and shall prepare and deliver to the Initial Purchasers, at the expense of the Issuer, an amendment of or supplement to the Additional Disclosure Documents, the Preliminary Offering Memorandum or the Offering Memorandum which will correct such statement or omission or effect such compliance. In the event that the Initial Purchasers shall incur any costs in connection with the reformation of a contract of sale with any investor that received a Preliminary Offering Memorandum or an Offering Memorandum that contains or contained any untrue statement of material fact or failed to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Issuer and the Manager jointly and severally agree to reimburse the Initial Purchasers for such costs, provided that should the untrue statement or omission in such event Preliminary Offering Memorandum or Offering Memorandum did not relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out Initial Purchaser Information (as defined in Section 3(d) above13 hereof).
(vb) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying use its reasonable efforts to arrange for qualification or exemption of the Bonds Notes for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company securities or dealer in securities, to file any consents to service of process under the “Blue Sky” laws of any jurisdiction, or meet any other requirements deemed by state that the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, Initial Purchasers shall reasonably request and shall pay or cause to be paid all reasonable expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel counsel) in connection with the qualification or exemption and in connection with the determination of the eligibility of the Notes for investment under the Underwriters laws of the jurisdictions that the Initial Purchasers may reasonably designate and all trustee, rating agency and CPUC advisor fees), will continue such qualifications or exemptions in effect in such jurisdictions until the earlier of (iiix) the qualification date on which Initial Purchasers shall have completed the initial resale of all of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, Notes and (iiy) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from 90 days after the date of this Underwriting Agreement to the date that is five days after the Closing DateAgreement, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall will not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms be required to (i) qualify to do business in any jurisdiction it is not now so qualified, (ii) take any action that would subject it to service of process in suits (other than those suits arising out of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above offering or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) sale of the Indenture with respect Notes) in any jurisdiction where it is not now so subject or (iii) subject it to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) taxation in excess of the Indenture, or otherwise, a nominal dollar amount in any such obligations shall be correspondingly terminated or limited hereunderjurisdiction where it is not now so subject.
(xc) The Issuer shall, without charge, provide to the Initial Purchasers as many copies of the Additional Disclosure Documents, the Preliminary Offering Memorandum and SCE will not file the Offering Memorandum and any amendment to the Registration Statement or amendment thereof or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer thereto as the Representatives Initial Purchasers may reasonably request.
(xiid) So long The Issuer (or any of its “affiliates” as defined in Regulation D under the Bonds are rated by Act), directly or through any Rating Agencyagent, shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any “security” (as defined in the Issuer will comply Act) that is integrated with the 17g-5 Representations, other than (x) any noncompliance sale of the 17g-5 Representations Notes hereunder in a manner that would not have a material adverse effect on cause the rating exemption afforded by Section 4(2) of the Bonds Act or the Bonds or (y) any noncompliance arising from safe harbor of Regulation S thereunder to cease to be applicable to the breach by an Underwriter offer and sale of the representations and warranties and covenants set forth in Section 13 hereofNotes hereunder.
Appears in 1 contract
Samples: Note Purchase Agreement (TAL International Group, Inc.)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act 424(b) as in the opinion of Counsel for the Underwriters (as defined in Section 8(a)(vi) hereof) a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Rate Stabilization Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or of, the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(viii) The Issuer or SCE BGE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxestaxes payable in connection with the transfer and delivery of the Bonds from the Underwriters to the Bond purchasers) in connection with (iA) the preparation and filing by it of the Registration Statement, the Pricing Prospectus and the Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing ProspectusesProspectus, (iiB) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, (1) reasonable fees and disbursements of Pillsbury Wxxxxxxx Xxxx Xxxxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), (2) the transfer and other taxes payable on the transfer and delivery of the Bonds to the Underwriters and (3) all trustee, rating agency agency, accounting and CPUC PSC financial advisor feesfees and expenses), (iiiC) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,0006,000), (ivD) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement andStatement, except as provided in Section 8(a)(iv) hereof, of the Pricing Package Prospectus and the Final Prospectus. If , (E) any amendment or supplement to the obligation Registration Statement, Pricing Prospectus, or any Issuer Free Writing Prospectus (except the cost of amending or supplementing the Prospectus after nine months following the Closing Date, which shall be at the expense of the Underwriters requesting same) and (F) all other costs and expenses of third parties (other than the Underwriters) incident to purchase the issuance and delivery of the Bonds terminates to the Underwriters. Notwithstanding the foregoing, the Issuer shall not, however, be required to pay any amount for any expenses of the Underwriters other than as set forth in clause (B) above or for any fees and expenses of counsel for the PSC’s financial advisor, except that, if the sale of the Bonds provided for herein is not consummated because any condition set forth in Section 9 hereof is not satisfied, because this Underwriting Agreement shall be terminated in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, Section 10 or 12 hereof, or because of any failure or refusal on the part of the Issuer or SCE (i) BGE to comply with the terms or fulfill any of the conditions of this Underwriting Agreement, other than by reason of a default by any of the Underwriters, the Issuer or BGE will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(viiiii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viiiiv) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb9(z) of this Underwriting Agreement hereof is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ixv) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that , and the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic DocumentsCommission. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parentabove, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(xvi) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, Act without prior notice to the Underwriters, Underwriters or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel Counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE BGE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Covenants of the Issuer. The Issuer hereby covenants and agrees with for itself and its subsidiaries that for so long as any of the several Underwriters thatNotes shall remain Outstanding:
(ia) The Issuer it will upon request promptly deliver duly and punctually pay the principal of and any interest on the Notes in accordance with the terms hereof;
(b) it will do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charters and statutory) and franchises;
(c) it will cause all material properties used or useful in the Representatives conduct of its business to be maintained and Counsel kept in good condition, repair and working order and supplied with all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the Underwriters a conformed copy of the Registration Statement, certified by an officer reasonable judgment of the Issuer may be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times; provided, however, that the foregoing shall not prevent the Issuer from discontinuing the operation or maintenance of any such properties if such discontinuance is, in the reasonable judgment of the Issuer, desirable in the conduct of its business or the business of any of its subsidiaries, and not disadvantageous in any material respect to the holders of Notes; and, provided, further, that the failure to comply herewith shall not be deemed a breach or Event of Default (as hereinafter defined) hereof unless such failure would have a material adverse effect on the business, financial condition or results of operations of the Issuer and its subsidiaries, taken as a whole (a "Material Adverse Effect");
(d) it will pay or discharge or cause to be in paid or discharged, before the form as originally filed same shall become delinquent, (i) all taxes, assessments and all amendments thereto.
governmental charges levied or imposed upon the Issuer or upon the income, profits or property of the Issuer, and (ii) The Issuer will deliver to all lawful claims for labor, materials and supplies which, if unpaid, might by law become a lien upon the Underwriters, as soon as practicable after the date hereof, as many copies property of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order andIssuer; provided, if issuedhowever, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company pay or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings; and, provided, further, that the failure to comply herewith shall not be deemed a breach or Event of Default if it would not have a Material Adverse Effect;
(e) it will furnish to each Registered Holder of Notes a copy of all expenses and taxes (except transfer taxes) in connection with (i) documents it is required to send to its shareholders at the preparation and filing by it of time the Registration Statementsame are sent to shareholders, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees annual reports and disbursements proxy statements;
(f) as soon as it becomes aware of Counsel the same, it will give written notice to each Registered Holder of Notes of any event or occurrence which by itself or with notice or lapse of time or both would entitle the holders of the Notes to declare the principal of and any interest on the Notes immediately due and payable pursuant to Section 15 hereof;
(g) it will promptly obtain and maintain from time to time all authorizations, permits, approvals, consents, licenses and exemptions which are required under any applicable law or regulation to enable it to perform all of its payment, conversion and other material obligations under the Notes or which may be required for the Underwriters validity or enforceability of the Notes; provided, however, that the failure to obtain and maintain such authorizations, permits, approvals, consents, licenses and exemptions as to material obligations other than payment and conversion shall not constitute a breach or Event of Default unless such non-compliance materially adversely affects the Issuer's ability to comply with its obligations under the Notes; (h) it will duly and punctually comply with and observe all statutes now or hereafter in force and all trusteeordinances, rating agency regulations and CPUC advisor fees)by-laws thereunder and all requirements and orders of any government or other public authority, provided, however, that the failure to comply herewith shall not be deemed a breach or Event of Default if it would not have a Material Adverse Effect;
(iiii) subject to reasonable limitations as may be imposed by the qualification Issuer, it will permit any representative of any Registered Holder or Holders of at least $100,000 aggregate principal amount of the Bonds under blue-sky laws (including counsel fees not Notes to exceed $15,000)make, (iv) the printing during normal business hours and delivery to the Underwriters of after reasonable quantities notice, inspections of the Registration Statement andproperty of, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder business operations being carried out of an Underwriter default), 9, 10 or 12 hereofby, the Issuer or SCE any of its subsidiaries;
(ij) subsequent to effecting the Charter Amendments, as defined in the Purchase Agreement, it will reimburse the Underwriters authorize and reserve a sufficient number of shares of its common stock, $.001 par value per share ("Common Stock"), to provide for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation conversion of the performance Notes into shares of this Underwriting Agreement. The Issuer shall not in any event be liable Common Stock; and
(k) it will lend the entire proceeds of each Note to any Drinks Americas, Inc. ("DA") promptly within three (3) business days of the several Underwriters for damages on account Original Issue Date of loss each of anticipated profits.the Notes, upon delivery of a promissory note issued by DA, evidencing such loan, substantially in the form attached hereto as Exhibit B (collectively, the "DA Notes")
(viil) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer it shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture deposit all payments it receives with respect to the Bonds. To DA Notes in a segregated bank account and it shall use the extent that the Issuer’s amounts deposited therein exclusively to satisfy its obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer pay principal and SCE will not file any amendment interest to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered Registered Holders under the Securities Act, without prior notice to Notes until the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who Notes are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuersatisfied in full.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Samples: Note (Drinks Americas Holdings, LTD)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters Underwriter that:
(i) The Issuer will upon request promptly deliver use its best efforts to the Representatives and Counsel to the Underwriters a conformed copy of cause the Registration Statement, certified by an officer if not effective at the Execution Time, and any amendment thereto, to become effective. Prior to the termination of the Issuer to be in offering of the form as originally filed and all amendments thereto.
(ii) The Bonds, the Issuer will deliver not file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the UnderwritersBasic Prospectus unless the Issuer has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus Prospectus, properly completed in a form approved by you, and any supplement thereto to be filed with the Commission SEC pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Underwriter of such timely filing. The Issuer will promptly advise the Underwriter (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective, (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the SEC pursuant to Rule 424 under 424(b), (iii) when, prior to termination of the Securities Act as soon as practicable and will advise offering of the Underwriters Bonds, any amendment to the Registration Statement shall have been filed or become effective, (iv) of any request by the SEC for any amendment of the Registration Statement or supplement to the Final Prospectus or for any additional information, (v) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding therefor for that purpose and (vi) of which the receipt by the Issuer shall have received noticeof any notification with respect to the suspension of the qualification of the Bonds for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(ivii) If, during such period of at any time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters when a prospectus covering relating to the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or occurs as a result of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as then supplemented or amended, it will not contain would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances when under which they were made not misleading, or if it shall be necessary to amend the Pricing Package Registration Statement or supplement the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under comply with the Securities Act)Act or the Exchange Act or the respective rules thereunder, not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with promptly will (i) prepare and file with the preparation and filing by it of the Registration StatementSEC, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery subject to the Underwriters second sentence of reasonable quantities paragraph (a)(i) of the Registration Statement andthis Section 5, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 amendment or 12 hereof, the Issuer supplement which will correct such statement or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, omission or effect such compliance and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, supply any supplemented Prospectus to you in such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time quantities as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives you may reasonably request.
(xiiiii) So long As soon as the Bonds are rated by any Rating Agencypracticable, the Issuer will comply with make generally available to the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating holders of the Bonds and the Underwriter an earnings statement or statements of the Bonds or Issuer which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(yiv) any noncompliance arising from The Issuer will furnish to the breach Underwriter and counsel for the Underwriter, without charge, copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of any Preliminary Final Prospectus and the representations Final Prospectus and warranties and covenants set forth in Section 13 hereof.any supplement thereto as the Underwriter may reasonably request. The Issuer shall furnish or cause to be furnished to the Underwriter copies of all reports required by Rule 463 under the
Appears in 1 contract
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed signed copy of the Registration StatementStatement as originally filed or, to the extent a signed copy is not available, a conformed copy, certified by an officer of the Issuer to be in the form as originally filed filed, including all Incorporated Documents and exhibits and of all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as of such date as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Series 2004 Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act)dealer, any event relating to or affecting the Issuer, the Series 2004 Bonds or the Recovery Series 2004 Transition Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s 's reasonable judgment opinion after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of of, the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act)purchaser, the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s 's expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act)purchaser, not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer In case any Underwriter is required to deliver a prospectus after the expiration of nine months from the 424 Date, the Issuer, upon such Underwriter's request, will also fulfill its obligations set out in furnish to such Underwriter, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or supplements to the Prospectus complying with Section 3(d10(a) aboveof the Securities Act.
(v) The Issuer will make generally available to its security holders, as soon as practicable, an earnings statement (which need not be audited) covering a period of at least twelve months beginning not earlier than the first day of the month next succeeding the month in which occurred the effective date of the Registration Statement as defined in Rule 158 under the Securities Act.
(vi) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Series 2004 Bonds for offer and sale under the blue-sky laws of the states of the United States such jurisdictions as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vivii) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Series 2004 Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC PUCT financial advisor fees), (iii) the qualification of the Series 2004 Bonds under blue-sky laws (including counsel fees not to exceed $15,0007,500), and (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv8(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation The Issuer shall not, however, be required to pay any amount for any expenses of the Underwriters to purchase the Bonds terminates Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default)Section 7, 9, 10 9 or 12 13 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,00010,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(viiviii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Series 2004 Bonds).
(viiiix) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb9(y) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ixx) The Issuer will file with the Commission a report on Form 8-K setting forth all Computational Materials and ABS Term Sheets (as such terms are hereinafter defined) provided to the Issuer by any Underwriter and identified by it as such within the time period allotted for such filing pursuant to the No-Action Letters (as hereinafter defined); provided, however, that, prior to any filing of the Computational Materials and ABS Term Sheets by the Issuer, such Underwriter must comply with its obligations pursuant to Section 8A hereof, and the Issuer must receive, prior to the Closing Date, a letter from Ernst & Young, certified public accountants, satisfactory in form and substance to the Issuer and such Underwriter, to the effect that such accountants have performed specified procedures, all of which have been agreed to by the Issuer and such Underwriter, as a result of which they have determined that the information included in the Computational Materials and ABS Term Sheets (if any), provided by such Underwriter to the Issuer for filing on Form 8-K pursuant to said Section 8A and this Section 8(a)(x), and which the accountants have examined in accordance with such agreed upon procedures, is accurate except as to such matters that are not deemed by the Issuer and such Underwriter to be material. The Issuer shall file any corrected Computational Materials or ABS Terms Sheets described in Section 8A hereof as soon as practicable following receipt thereof.
(xi) For a period from the date of this Underwriting Agreement until the retirement of the Series 2004 Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Series 2004 Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s 's parent, such periodic reports, if any, as are required (without regard to the number of holders of Series 2004 Bonds to the extent permitted by and consistent with the Issuer’s 's obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that , and the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic DocumentsCommission. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s 's obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parentabove, such information as required by Section 3.07(g3.07(h) of the Indenture with respect to the Series 2004 Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Txu Electric Delivery Transition Bond Co LLC)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver use its best efforts to the Representatives and Counsel to the Underwriters a conformed copy of cause the Registration Statement, certified by an officer if not effective at the Execution Time, and any amendment thereto, to become effective. Prior to the termination of the Issuer to be in offering of the form as originally filed and all amendments thereto.
(ii) The Bonds, the Issuer will deliver not file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the UnderwritersBasic Prospectus unless the Issuer has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus Prospectus, properly completed, and any supplement thereto to be filed with the Commission SEC pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Issuer will promptly advise the Representative (A) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective, (B) when the Final Prospectus, and any supplement thereto, shall have been filed with the SEC pursuant to Rule 424 under 424(b), (C) when any amendment to the Securities Act as soon as practicable and will advise Registration Statement shall have been filed or become effective, (D) of any request by the Underwriters SEC for any amendment of the Registration Statement or supplement to the Final Prospectus or for any additional information, (E) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding therefor for that purpose, (F) of which the receipt by the Issuer shall have received noticeof any notification with respect to the suspension of the qualification of the Bonds for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and (G) of the happening of any event during the period mentioned in subparagraph (ii) below. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(ivii) If, during such period of If at any time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters when a prospectus covering relating to the Bonds is required by law to be delivered under the Act in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act)dealer, any event relating to or affecting the Issuer, the Bonds or the Recovery Property or occurs as a result of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package as then amended or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or supplemented would include an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact fact, or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Package Registration Statement or supplement the Final Prospectus is delivered to a purchaser (including comply with the Act in circumstances where connection with sales by an Underwriter or dealer, the Issuer agrees to advise you of such requirement event or necessity, as the case may be satisfied pursuant be, and, promptly upon request made by you, to Rule 172 under prepare and file with the Securities Act)Commission an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance, not misleading; provided that should the expense of preparing and filing any such event relate amendment or supplement (A) which is necessary in connection with such a delivery of a prospectus more than nine months after the date of this Underwriting Agreement or (B) which relates solely to the activities of any Underwriter shall be borne by the Underwriter or Underwriters or the dealer or dealers requiring the same; and provided further that you shall, upon inquiry by the Company, advise the Company whether or not any Underwriter or dealer which shall have been selected by you retains any unsold Bonds and, for the purposes of this subsection (ii), the Company shall be entitled to assume that the distribution of the Bonds has been completed when it is advised by you that no Underwriter or such dealer retains any Bonds.
(iii) As soon as practicable and no later than 12 months after the Closing Date, the Issuer will make generally available to the Bondholders and to the Representative an earnings statement or statements of the Issuer which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(iv) The Issuer will furnish to the Representative and counsel for the Underwriters, then such Underwriters shall assume without charge, copies of the expense Registration Statement (including exhibits thereto) and, so long as delivery of preparing a prospectus by an Underwriter or dealer may be required by the Act, as many copies of any Preliminary Final Prospectus and furnishing the Final Prospectus and any such amendment or supplementsupplement thereto as the Representative may reasonably request. The Issuer will also fulfill its obligations set out in Section 3(d) abovepay the expenses of printing or other production of all documents relating to the offering.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying arrange for the qualification of the Bonds for offer and sale under the blue-sky laws of such jurisdictions as the states Representative may designate, will maintain such qualifications in effect so long as required for the distribution of the United States as Bonds and will arrange for the Representatives may designatedetermination of the legality of the Bonds for purchase by institutional investors; provided that in no event shall the Issuer shall not be required obligated to qualify as a foreign limited liability company to do business in any jurisdiction where it is not now so qualified or dealer in securities, to file take any consents action that would subject it to service of process under in suits, other than those arising out of the laws offering or sale of the Bonds, in any jurisdiction, jurisdiction where it is not now so subject or meet any other requirements requirement in connection with this clause (v) deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) Until the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages business date set forth on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing DateSchedule I hereto, the Issuer will not, without the prior written consent of the RepresentativesRepresentative, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(vii) For a period from the date of this Underwriting Agreement until the retirement of the Bonds, or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer will deliver to the Representative the annual statements of compliance and the annual independent auditor's servicing reports furnished to the Issuer or the Trustee pursuant to the Servicing Agreement or the Indenture, as applicable, as soon as such statements and reports are furnished to the Issuer or the Trustee.
(viii) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representative (A) as soon as available, a copy of each report of the Issuer filed with the SEC under the Exchange Act, or mailed to Bondholders, (B) a copy of any filings with the Pennsylvania Public Utility Commission pursuant to the QRO including, but not limited to, any annual or more frequent adjustment filings, and (C) from time to time, any information concerning the Company or the Issuer as the Representative may reasonably request.
(ix) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb7(l) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ixx) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the The Issuer shall will file with the CommissionCommission a report on Form 8-K setting forth all Computational Materials and ABS Term Sheets (as such terms are defined in Section 6) provided to the Issuer by any Underwriter and identified by it as such within the time period allotted for such filing pursuant to the No-Action Letters (as defined in Section 6); provided, however, that prior to any filing of the Computational Materials and ABS Term Sheets by the Issuer, such Underwriter must comply with its obligations pursuant to Section 6 and the Issuer must receive a letter from PricewaterhouseCoopers LLP, certified public accountants, satisfactory in form and substance to the Issuer and such Underwriter, to the effect that such accountants have performed specified procedures, all of which have been agreed to by the Issuer and such Underwriter, as a result of which they have determined that the information included in the Computational Materials and ABS Term Sheets (if any), provided by such Underwriter to the Issuer for filing on Form 8-K pursuant to Section 6 and this subsection (x), and which the accountants have examined in accordance with such agreed upon procedures, is accurate except as to the extent permitted such matters that are not deemed by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documentssuch Underwriter to be material. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement corrected Computational Materials or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (AABS Terms Sheets described in Section 6(a)(iv) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably requestpracticable following receipt thereof.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Pp&l Transition Bond Co Inc)
Covenants of the Issuer. 6.1 The Issuer covenants and agrees with the several Underwriters thatwill:
(ia) The Issuer will upon request promptly offer, sell, issue and deliver the Units pursuant to the Representatives and Counsel to the Underwriters a conformed copy Exemptions or qualification requirements of Applicable Securities Laws of the Registration StatementQualifying Jurisdictions and otherwise fulfil all legal requirements required to be fulfilled by the Issuer (including without limitation, certified by an officer compliance with all Applicable Securities Laws of the Qualifying Jurisdictions) in connection with the Private Placement;
(b) reserve sufficient Shares in the treasury of the Issuer to be in enable it to issue the form as originally filed Unit Shares and all amendments thereto.the Warrant Shares;
(iic) The at any time that the Purchaser should hold, directly or indirectly, legally or beneficially a number of Shares or securities convertible into Shares equal to or greater than ten percent (10%) of the issued and outstanding Shares as at any record date (a “Record Date”) for an annual general meeting for holders of the Shares (a “Meeting”), the Purchaser may present a nominee (a “Subscriber Nominee”) for election as a director of the Issuer will deliver at such Meeting; and the Issuer shall, subject to the Underwritersfiduciary duties of its officers and directors, under applicable law, take such steps as soon are required to cause such Subscriber Nominee to be nominated as practicable after the date hereof, as many copies a directors of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters board of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for proposing the Underwriters and all trustee, rating agency and CPUC advisor fees), (iii) the qualification Subscriber Nominee as directors at every shareholder meeting of the Bonds under blue-sky laws (including counsel fees not Issuer called to exceed $15,000), (iv) elect directors and doing or causing to be done all such acts and things within its power in order to fully and effectively carry out the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates foregoing in accordance with the provisions terms hereof;
(d) use the net proceeds from the Purchaser’s Subscription Funds for the exploration and development program of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default)the Issuer’s projects in Greenland and Canada and for general working capital purposes, 9, 10 or 12 hereof, unless the Issuer has obtained the Purchaser’s prior written approval for any other use of such funds, which approval shall not be unreasonably withheld or SCE delayed;
(ie) will reimburse use its commercially reasonable best efforts to maintain its status as a “reporting issuer” not in default in British Columbia and Alberta for a period of two years from the Underwriters First Closing Date or the Second Closing Date, whichever is later;
(f) maintain its listing of its common shares on the Exchange for a period of two years from the reasonable First Closing Date or the Second Closing Date, whichever is later;
(g) within the required time, file with the applicable Regulatory Authorities and the Exchange any documents, reports and information, in the required form, required to be filed by Applicable Securities Laws in connection with the Private Placement, together with any applicable filing fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.other materials;
(viih) During the period from and including the date of this Underwriting Subscription Agreement through to and including the date that is five days after the Closing Datetime of Closing, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating do all such acts and things necessary to satisfy the condition set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided ensure that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter all of the representations and warranties of the Issuer contained in this Subscription Agreement or any certificates or documents delivered by it pursuant thereto remain true and covenants set forth correct in Section 13 hereof.all material respects;
(i) from and including the date of this Subscription Agreement through to and including the time of Closing, not do any such act or thing that would render any representation or warranty of the Issuer contained in this Subscription Agreement or any certificates or documents delivered by it pursuant thereto materially untrue or materially incorrect; and
(j) hold a shareholders’ meeting on June 13, 2013 to seek approval for the issuance of the Second Tranche Units to the Purchaser in accordance with Multilateral Instrument 61-101 – Protection of Minority Security Holders in Special Transactions and with Policy 5.9 of the Exchange, and, subject to obtaining such approval, will issue, on the third business day following the meeting (the “Second Closing Date”), the Second Tranche Units to the Purchaser. - 11 -
Appears in 1 contract
Samples: Unit Subscription Agreement (Sentient Executive GP IV, LTD)
Covenants of the Issuer. The Issuer covenants and agrees with each of the several Underwriters Initial Purchasers that:
(a) Until the later of (i) the completion of the distribution of the Notes by the Initial Purchasers and (ii) the Closing Date, the Issuer will not amend or supplement the Pricing Disclosure Package or the Final Memorandum or otherwise distribute or refer to any written communication (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of an offer to buy the Notes (other than the Pricing Disclosure Package, the Recorded Road Show and the Final Memorandum) or file any report with the Commission under the Exchange Act unless the Initial Purchasers shall previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment, supplement or report and as to which the Initial Purchasers shall have given their consent (such consent not to be unreasonably withheld, conditioned or delayed). The Issuer will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Pricing Disclosure Package and the Final Memorandum that may be necessary or advisable in connection with the resale of the Notes by the Initial Purchasers.
(b) The Issuer will upon request promptly deliver to cooperate with the Representatives and Counsel to Initial Purchasers in arranging for the Underwriters a conformed copy qualification of the Registration Statement, certified by an officer Notes for offering and sale under the securities or “Blue Sky” laws of which jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Notes; provided, however, that in connection therewith, the Issuer shall not be required to be qualify as a foreign corporation or to execute a general consent to service of process in the form as originally filed and all amendments theretoany jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv1) If, during such period at any time prior to the completion of time (not exceeding nine months) after the Final Prospectus has been filed with sale by the Commission pursuant to Rule 424 under Initial Purchasers of the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act)Notes, any event relating to occurs or affecting the Issuer, the Bonds or the Recovery Property or information becomes known as a result of which the Issuer shall be advised in writing by Pricing Disclosure Package and the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (Final Memorandum as defined below) should be set forth in then amended or supplemented would include any untrue statement of a supplement tomaterial fact, or an amendment of the Pricing Package or the Final Prospectus in order omit to state a material fact necessary to make the Pricing Package or the Final Prospectus not misleading statements therein, in the light of the circumstances when under which they were made, not misleading, or if for any other reason it is delivered necessary at any time to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Disclosure Package or and the Final Prospectus by either (A) preparing Memorandum to comply with applicable law, the Issuer will promptly notify the Initial Purchasers thereof and furnishing to the Underwriters will prepare, at the expense of the Issuer’s expense a reasonable number of copies of a supplement or supplements or , an amendment or amendments supplement to the Pricing Disclosure Package or and the Final Prospectus Memorandum that corrects such statement or omission or effects such compliance and (B2) making an appropriate filing pursuant if at any time prior to Section 13 the Closing Date (i) any event shall occur or Section 15 condition shall exist as a result of which any of the Exchange Act, which will supplement Pricing Disclosure Package as then amended or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when under which they were made, not misleading or any Issuer Written Communication would conflict with the Pricing Disclosure Package as then amended or the Final Prospectus supplemented, or (ii) it is delivered necessary to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of amend or supplement any of the UnderwritersPricing Disclosure Package so that any of the Pricing Disclosure Package or any Issuer Written Communication will comply with law, then the Issuer will immediately notify the Initial Purchasers thereof and forthwith prepare and, subject to paragraph (a) above, furnish to the Initial Purchasers such Underwriters shall assume amendments or supplements to any of the expense of preparing and furnishing Pricing Disclosure Package or any Issuer Written Communication (it being understood that any such amendment amendments or supplement. The supplements may take the form of an amended or supplemented Final Memorandum) as may be necessary so that the statements in any of the Pricing Disclosure Package as so amended or supplemented will not, in light of the circumstances under which they were made, be misleading or so that any Issuer Written Communication will also fulfill its obligations set out in Section 3(d) abovenot conflict with the Pricing Disclosure Package or so that the Pricing Disclosure Package or any Issuer Written Communication as so amended or supplemented will comply with law.
(vd) The Issuer will, without charge, provide to the Initial Purchasers and to counsel for the Initial Purchasers as many copies of the Pricing Disclosure Package, any Issuer Written Communication and the Final Memorandum or any amendment or supplement thereto as the Initial Purchasers may reasonably request.
(e) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying apply the Bonds for offer and net proceeds from the sale under the blue-sky laws of the states Notes as set forth under “Use of Proceeds” in the Pricing Disclosure Package and the Final Memorandum.
(f) For so long as any of the United States as the Representatives may designate; provided that Notes remain outstanding, the Issuer shall not be required will furnish to qualify as a foreign limited liability company the Initial Purchasers copies of all reports and other communications (financial or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed otherwise) furnished by the Issuer to the Trustee or to the holders of the Notes and, upon request, copies of any reports or financial statements furnished to or filed by the Issuer with the Commission or any national securities exchange on which any class of securities of the Issuer may be unduly burdensomelisted.
(vig) The Issuer or SCE will, except as herein provided, pay or cause Prior to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will furnish to the Initial Purchasers, as soon as they have been prepared, a copy of any unaudited interim financial statements of the Issuer for any period subsequent to the period covered by the most recent financial statements appearing in the Pricing Disclosure Package and the Final Memorandum.
(h) None of the Issuer or any of its Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any “security” (as defined in the Act) that could be integrated with the sale of the Notes in a manner which would require the registration under the Act of the Notes.
(i) The Issuer will not, and will not permit any of the Subsidiaries or their respective Affiliates or persons acting on their behalf to, engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Act) in connection with the offering of the Notes or in any manner involving a public offering within the meaning of Section 4(2) of the Act.
(j) For so long as any of the Notes remain outstanding, the Issuer will make available at its expense, upon request, to any holder of such Notes and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Act, unless the Issuer is then subject to Section 13 or 15(d) of the Exchange Act.
(k) During the period beginning on the date hereof and continuing to the date that is 180 days after the Closing Date, without the prior written consent of the Representatives, the Issuer will not offer, sell or sell, contract to sell, sell or otherwise dispose of, directly or indirectly, or announce the offering ofexcept as provided hereunder, any asset-backed securities of the Issuer (other than or securities guaranteed by the Bonds)Issuer) that are substantially similar to the Notes.
(viiil) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb) None of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after any of its Affiliates will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Closing Date, the Issuer shall furnish such documents and take such other actionsNotes.
(ixm) For a period from of one year (calculated in accordance with paragraph (d) of Rule 144 under the Act) following the date any Notes are acquired by the Issuer or any of this Underwriting Agreement until the retirement its Affiliates, none of the Bonds Issuer or until any of its Affiliates will sell any such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunderNotes.
(xn) The Issuer In connection with Notes offered and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting sold in an offshore transaction (as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xidefined in Regulation S) So long as any of the Bonds are outstanding, the Issuer will furnish to not register any transfer of such Notes not made in accordance with the Representativesprovisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if and to applicable, issue any such Notes in the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy form of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably requestdefinitive securities.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Covenants of the Issuer. The Issuer Company covenants and agrees with the several Underwriters thatas follows:
(ia) The Issuer will upon request promptly deliver If and to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with extent the offering of the Bonds.
Remarketed Notes in the Remarketing is required (ivin the view of counsel for the Company) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 be registered under the Securities Act as in effect at the opinion time of Counsel the Remarketing, the Company shall (Section 5(a) of this Agreement, the “Registration Covenants”):
(i) if the Registration Statement is an “automatic shelf registration statement” on Form S-3ASR and if, at any time prior to the Remarketing Settlement Date, the Company receives from the Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to use the automatic shelf registration statement form, then (A) promptly notify the Remarketing Agent, (B) promptly file a new registration statement or post-effective amendment on the proper form relating to the Remarketed Notes, in a form satisfactory to the Remarketing Agent, (C) use its best efforts to cause such registration statement or post-effective amendment to be declared effective and (D) promptly notify the Remarketing Agent of such effectiveness; take all other action necessary or appropriate to permit the public offering and sale of the Remarketed Notes to continue as contemplated in the registration statement that was the subject of the Rule 401(g)(2) notice or for which the Underwriters a prospectus covering Company has otherwise become ineligible. References herein to the Bonds is Registration Statement shall include such new registration statement or post-effective amendment, as the case may be;
(ii) pay the required Commission filing fees relating to the Remarketed Notes within the time required by law Rule 456(b)(1) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act;
(iii) prepare the Prospectus, file any such Prospectus pursuant to the Securities Act within the period required by the Securities Act and the rules and regulations thereunder and use commercially reasonable efforts to cause, if not already effective, the Registration Statement to be delivered declared effective by the Commission prior to the applicable Remarketing Date (it being understood that, for so long as there is a material business transaction or development that has not yet been publicly disclosed, other than in connection with sales an Optional Remarketing, the Company will not be required to file such Registration Statement or provide such a Prospectus until the Company has publicly disclosed such transaction or development);
(iv) file with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company, be required by an Underwriter the Securities Act or dealer requested by the Commission;
(v) advise the Remarketing Agent promptly after it receives notice thereof, of the time when, (A) prior to the Remarketing Settlement Date, any amendment to the Registration Statement has been filed or becomes effective or, (B) before, on or after the Remarketing Settlement Date, any supplement to the Prospectus or any amended Prospectus has been filed, and in each such case excluding documents filed under the Exchange Act incorporated by reference and in each case of (A) and (B) furnish the Remarketing Agent with copies of such notice;
(vi) file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a) or (c), 14 or 15(d) of the Exchange Act subsequent to the Commencement Date and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Remarketed Notes (including in circumstances where such requirement may be satisfied pursuant to Rule 172 172), and during such same period to advise the Remarketing Agent, promptly after it receives notice thereof, (A) of the time when any amendment to any Registration Statement has become effective or any supplement to any Prospectus or any amended Prospectus has been filed, (B) of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus, (C) of the suspension of the qualification of the Remarketed Notes for offering or sale in any jurisdiction, (D) of the initiation or threatening of any proceeding or examination for any such purpose or pursuant to Section 8A of the Securities Act, or (E) of any request by the Commission for the amending or supplementing of any Registration Statement or Prospectus or for additional information; and in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any Prospectus or suspending any such qualification, use promptly its best efforts to obtain its withdrawal;
(vii) if reasonably requested by the Remarketing Agent, prepare a final term sheet for the Remarketed Notes, containing solely a description of the Remarketed Notes, in a form agreed to with the Remarketing Agent, and file such final term sheet and all other Issuer Free Writing Prospectuses required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Securities Act within the time required by such Rule;
(viii) furnish promptly to the Remarketing Agent such copies of the following documents in such quantities as the Remarketing Agent shall reasonably request: (a) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits); (b) the Preliminary Prospectus and any amendment or supplement thereto; (c) the Prospectus and any amendment or supplement thereto; (d) any Issuer Free Writing Prospectus and any amendment or supplement thereto, and (e) any document incorporated by reference in the Prospectus (excluding exhibits thereto); and, if at any time when delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act)) is required in connection with the Remarketing, any event relating to or affecting the Issuer, the Bonds or the Recovery Property or development shall have occurred as a result of which (1) the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (Prospectus as defined below) should be set forth in a supplement to, then amended or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus (or in lieu thereof, the Pricing Package notice referred to in Rule 173(a) under the Securities Act) is delivered, not misleading, or (2) if for any other reason it shall be necessary, in the reasonable judgment of the Company, during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Final Exchange Act, or (3) if it shall be necessary during such same period to amend or supplement an Issuer Free Writing Prospectus is delivered in order for the Issuer Free Writing Prospectus, as so amended or supplemented, not to a purchaser conflict with the information then contained in the Registration Statement, then in each case notify the Remarketing Agent and, upon its request, file such document and prepare and furnish without charge to the Remarketing Agent and to any dealer in securities as many copies as the Remarketing Agent may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance or an amended or supplemented Issuer Free Writing Prospectus that will not conflict with the Registration Statement;
(including in circumstances where such requirement may be satisfied ix) during the time between the applicable Commencement Date and the Remarketing Settlement Date, prior to filing with the Commission (a) any amendment to the Registration Statement or supplement to the Prospectus or (b) any Prospectus pursuant to Rule 172 424 under the Securities Act, furnish a copy thereof to the Remarketing Agent; and not file any such amendment or supplement that shall be reasonably disapproved by the Remarketing Agent;
(x) as soon as practicable, but in any event not later than eighteen months, after the date of a Successful Remarketing, to make generally available to its security holders an earnings statement of the Company (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.and
(vxi) The Issuer will furnish take such proper information action as the Remarketing Agent may be lawfully required and otherwise cooperate reasonably request in qualifying order to qualify the Bonds Remarketed Notes for offer and sale under the blue-sky securities or “blue sky” laws of such jurisdictions as the states Remarketing Agent may reasonably request and will continue such qualifications in effect so long as required for distribution of the United States as the Representatives may designateRemarketed Notes; provided that in no event shall the Issuer shall not Company be required to qualify as a foreign limited liability company or dealer corporation in securitiesa jurisdiction in which it is not so qualified, to file any consents a general consent to service of process under the laws of in any jurisdiction, jurisdiction or meet to submit to any other requirements deemed by the Issuer to be which it deems unduly burdensome.
(vib) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with Company shall pay: (i) the costs incident to the preparation and filing by it printing of the Registration Statement, Pricing Prospectus and Final Prospectus (including if any, any amendments and supplements thereto) and Preliminary Prospectus, any Issuer Free Writing ProspectusesProspectus, any Prospectus and any other Remarketing Materials and any amendments or supplements thereto; (ii) the issuance costs of distributing the Registration Statement, if any, any Prospectus and delivery any other Remarketing Materials and any amendments or supplements thereto; (iii) any fees and expenses of qualifying the Remarketed Notes under the securities laws of the Bonds several jurisdictions as provided in Section 7 hereof 5(a)(xi) and of preparing, printing and distributing a “blue sky” memorandum, if any (including, without limitation, including any related reasonable fees and disbursements expenses of Counsel for counsel to the Underwriters and all trustee, rating agency and CPUC advisor feesRemarketing Agent), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), ; (iv) any fees charged by investment rating agencies for rating of the printing Remarketed Notes; (v) all other costs and delivery expenses incident to the Underwriters of reasonable quantities performance of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, obligations of the Pricing Package Company hereunder and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 Remarketing Agent hereunder; and (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (ivi) will reimburse the Underwriters for the reasonable fees and disbursements expenses of Counsel for counsel to the Underwriters, and (ii) will reimburse the Underwriters for Remarketing Agent in connection with their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profitsduties hereunder.
(viic) During The Company shall furnish the period from Remarketing Agent with such information and documents as the date of this Underwriting Agreement Remarketing Agent may reasonably request in connection with the transactions contemplated hereby, and make reasonably available to the date Remarketing Agent and any accountant, attorney or other advisor retained by the Remarketing Agent such information, and such access to the appropriate officers, employees and accountants of the Company, that is five days after parties would customarily require, and reasonably requested by the Closing Remarketing Agent, in connection with a due diligence investigation conducted in accordance with applicable securities laws.
(d) Between the applicable Commencement Date and the applicable Remarketing Settlement Date, the Issuer Company will not, without the prior written consent of the RepresentativesRemarketing Agent (which consent may be withheld at the reasonable discretion of the Remarketing Agent), directly or indirectly, sell, offer, contract to sell or contract grant any option to sell, or otherwise dispose of, directly or indirectly, or announce any debt securities which mature more than one year after the offering of, any asset-backed securities (other than applicable Remarketing Settlement Date of the Bonds)Company similar to the Remarketed Notes.
(viiie) To The Company represents and agrees that, unless it obtains the extentprior written consent of the Remarketing Agent, which consent shall not be unreasonably withheld, and the Remarketing Agent represents and agrees that, unless it obtains the prior written consent of the Company, it has not made and will not make any offer relating to the Remarketed Notes that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 of the Act), required to be filed by the Company with the Commission or retained by the Company under Rule 433; provided that, if any, that any rating necessary to satisfy the condition set forth prepared and used in accordance with Section 9(bb5(f) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parentAgreement, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer prior written consent shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture deemed given with respect to any final term sheet. Any such free writing prospectus consented to in writing by the BondsCompany or the Remarketing Agent, as the case may be, is hereinafter referred to as a “Permitted Free Writing Prospectus”. To the extent The Company represents that the Issuer’s obligations are terminated or limited by it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an amendment to Section 3.07(g) “issuer free writing prospectus” (as defined in Rule 433 of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if has complied and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance requirements of Rules 164 and 433 of the 17g-5 Representations Securities Act applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
(f) The Company will prepare a final term sheet relating to the Remarketed Notes, containing only information that would not have a material adverse effect on describes the rating final terms of the Bonds or Remarketed Notes after providing the Bonds or Remarketing Agent and its legal counsel with a reasonable opportunity to review and comment on such final term sheet (ysuch final term sheet to be in form and substance as last reviewed by the Remarketing Agent and the Company), and will file such final term sheet within the period required by Rule 433(d) any noncompliance arising from the breach by an Underwriter of the representations Securities Act following the date such final terms have been established for the Remarketed Notes. Any such final term sheet is an Issuer Free Writing Prospectus and warranties and covenants set forth in Section 13 hereofa Permitted Free Writing Prospectus for purposes of this Agreement.
Appears in 1 contract
Samples: Purchase Contract and Pledge Agreement (Dominion Resources Inc /Va/)
Covenants of the Issuer. The Issuer Company agrees and covenants and agrees with the several Underwriters that:
(a) prior to the Closing Date, the Company shall, and shall cause each of the Subsidiaries to, (i) The Issuer will upon request promptly deliver to cause the Representatives and Counsel to the Underwriters a conformed copy business of the Registration StatementGroup to be conducted in all material aspects in the ordinary course of business and (ii) not take any action that, certified by if taken after the Closing, would constitute (or, with the giving of notice or the passage of time, would constitute) an officer Event of Default (as defined in the Instrument) or require the Investor’s consent under the terms of the Issuer to be in the form as originally filed and all amendments theretoNotes.
(iib) The Issuer will deliver to the UnderwritersCompany shall pay (i) any stamp, as soon as practicable after issue, registration, documentary or other taxes and duties, including interest and penalties in the date hereofCayman Islands, as many copies of the Pricing Prospectus Hong Kong, PRC and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause all other relevant jurisdictions payable on or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing the creation and furnishing to issuance of the Underwriters at Notes, the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package New Shares or the Final Prospectus New ADSs or (B) making an appropriate filing pursuant to Section 13 the execution or Section 15 delivery of the Exchange Act, which will supplement or amend the Pricing Package this Agreement or the Final Prospectus so thatInstrument; and (ii) any value added, as supplemented turnover or amended, it will not contain any untrue statement of a material fact or omit similar tax payable in respect thereof (and references in this Agreement to state any material fact necessary in order such amount shall be deemed to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing include any such amendment or supplement. The Issuer will also fulfill its obligations set out taxes so payable in Section 3(d) aboveaddition to it).
(vc) The Issuer will furnish the Company shall (i) promptly notify the Investor of any change affecting any of its representations, warranties, agreements and/or indemnities herein at any time prior to payment being made to the Company on the Closing Date and (ii) take such proper information steps as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed reasonably requested by the Issuer Investor to be unduly burdensomeremedy the same.
(vid) The Issuer or SCE will, except as herein provided, pay or cause the Company shall obtain all authorizations relating to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it issuance of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing ProspectusesNotes, (ii) the issuance and delivery remittance of the Bonds as provided proceeds received by the Company from the sale of the Notes to any entity organized in Section 7 hereof (includingthe PRC, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees), (iii) the qualification use of such proceeds by any entity organized in the PRC, including the filing by a PRC Subsidiary with NDRC of the Bonds under blue-sky laws requisite information and documents within ten (including counsel fees not to exceed $15,000), (iv10) Business Days after the printing and delivery to the Underwriters date of reasonable quantities issuance of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates Notes in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profitsNDRC Circular.
(viie) During the period from Company shall and shall cause the date of this Underwriting Agreement Group to the date that is five days complete after the Closing Datecertain operational improvement steps in accordance with a plan to be furnished by the Investor and agreed by the Company.
(f) for so long as any Notes remain outstanding, the Issuer Company shall, and shall cause all other Group Companies to, comply with and require their respective Affiliated Persons, in their capacities as such, to comply with all applicable Laws, including the Securities Laws; in particular, the Company shall and shall cause all other Group Companies to strictly comply with all applicable Anti-Corruption Laws, Anti-Money Laundering Laws, and Sanctions in their business operations. The Company further covenants to the Investor that the Company will not, without the prior written consent of the Representativeswill take reasonable efforts to ensure that its Affiliated Persons will not, offerand will cause all other Group Companies not to (and will cause all other Group Companies to take reasonable efforts to ensure that their respective Affiliated Persons will not), sell or contract offer to sellpay, promise to pay, or otherwise dispose ofauthorize the payment of any money or anything of value to any Government Official (including any Government Officials to whom such Group Company or its Affiliated Person knows or ought to know that all or a portion of such money or things of value will be offered, given or promised, directly or indirectly) for the purpose of (1) influencing any act or decision of Government Officials in their official capacity; (2) inducing Government Officials to act or omit to act in violation of lawful duties; (3) securing any improper advantage; (4) inducing Government Officials to influence or affect any act or decision of any Governmental Authority; or (5) assisting any Group Company in obtaining or retaining business, or announce directing business to, such member. The Company shall cause the offering ofGroup to maintain a reasonably complete financial record and reasonably effective internal control measures in accordance with applicable Laws, including Anti- Corruption Laws and GAAP. The Company shall provide the Investor with reasonable access to the books and records of the Group and shall cooperate with any asset-backed securities (other than compliance audit or inquiry conducted by the Bonds)Investor.
(viiig) To the extent, if any, Company shall maintain its eligibility to register the Ordinary Shares (or such Ordinary Shares in the form of ADSs) for resale by the Noteholder on Form F-3.
(h) the Company agrees and undertakes that the Investor may exercise its rights in respect of any rating necessary to satisfy and all the condition Ordinary Shares (or such Ordinary Shares in the form of ADS) convertible from any Notes held by the Investor in accordance with the terms set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actionsSchedule 1 hereto.
(ixi) For a period from in case of any breach of the undertakings listed in Sections 6 (f), (g) or (h), the Investor shall have the right, at the Investor’s option, to require the Company to, and the Company shall, within ten (10) Business Days of the date of this Underwriting Agreement until the retirement notice requiring such repurchase, repurchase for cash all of such Investor’s Notes, or any portion thereof that is an integral multiple of $100,000 in principal amount, at a repurchase price that is equal to 100% of the Bonds or until such time as principal amount of the Underwriters shall cease Notes to maintain a secondary market in the Bondsbe repurchased, whichever occurs firstplus accrued and unpaid interest to, but excluding, the Issuer shall file with the Commission, and date such repurchase price is fully paid to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunderInvestor.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are Class A-2 Notes remains outstanding, the Issuer will furnish has made certain covenants for the benefit of the Noteholders which are set out in the Master Trust Deed. These covenants include the following:
(a) The Issuer shall act continuously as trustee of the Trust until the Trust is terminated as provided by the Master Trust Deed or the Issuer has retired or been removed from office in the manner provided under the Master Trust Deed.
(b) The Issuer shall: -------------------------------------------------------------------------------- Page 102 + Note Trust Deed Allens Arthur Robinsxx --------------------------------------------------------------------------------
(i) act honestly and in good faith and comply with all relevant material laws in the performance of its duties and in the exercise of its discretions under the Master Trust Deed;
(ii) subject to the RepresentativesMaster Trust Deed, if exercise such diligence and prudence as a prudent person of business would exercise in performing its express functions and in exercising its discretions under the Master Trust Deed, having regard to the interests of the Noteholders and other creditors and beneficiaries of the Trust;
(iii) use its best endeavours to carry on and conduct its business in so far as it relates to the Master Trust Deed in a proper and efficient manner;
(iv) keep, or ensure that the Manager keeps, accounting records which correctly record and explain all amounts paid and received by the Issuer;
(v) keep the Trust separate from each other trust which is constituted under the Master Trust Deed and from its own assets and account for assets and liabilities of the Trust separately from those of other trusts constituted under the Master Trust Deed and from its own assets and liabilities;
(vi) do everything and take all such actions which are necessary (including obtaining all appropriate authorisations which relate to it as trustee of the Trust and taking all actions necessary to assist the Manager to obtain all other appropriate authorisations) to ensure that it is able to exercise all its powers and remedies and perform all its obligations under the Master Trust Deed, the Transaction Documents and all other deeds, agreements and other arrangements entered into by the Issuer under the Master Trust Deed;
(vii) not engage in any business or activity in respect of the Trust except as contemplated or required by the Transaction Documents;
(viii) except as contemplated or required by the Transaction Documents, maintain an independent and arm's length relationship with its related bodies corporate in relation to dealings affecting the Trust;
(ix) except as contemplated or required by the Transaction Documents, not, in respect of the Trust, guarantee or become obligated for the debts of any other entity or hold out its credit as being available to settle the obligations of others; and
(x) comply with the rules and regulations of any stock exchange on which any Note is listed from time to time (the STOCK EXCHANGE); and
(xi) within 45 days of notice from the Manager to do so, remove any of its agents or delegates that breaches any obligation imposed on the Issuer under the Master Trust Deed or any other Transaction Document where the Manager believes it will have a Material Adverse Affect.
(c) Except as provided in any Transaction Document (and other than the charge given to the Security Trustee), the Issuer shall not, nor shall it permit any of its officers to, sell, mortgage, charge or otherwise encumber or part with possession of any Asset of the Trust.
(d) The Issuer covenants that it will duly observe and perform the covenants and obligations of the Master Trust Deed, and the Issuer will be personally liable to the Servicer, the Noteholders, the Residual Income Beneficiary, the Note Managers, the Note Trustee or other creditors of the Trust, as the case may be, only to the extent that there has been a reduction in its indemnity from the Assets as a result of its negligence, fraud or Default (as defined in Condition 15(b)(vii) "Liability of Trustee limited to its -------------------------------------------------------------------------------- Page 103 + Note Trust Deed Allens Arthur Robinsxx -------------------------------------------------------------------------------- right of indemnity"). The Issuer is not posted on XXXXX responsible for the acts or omissions of its agents and delegates (including persons referred to in clause 17.6 of the Master Trust Deed) selected by the Issuer in good faith and using reasonable care, except where the Issuer expressly instructs the agent or its affiliate’s websitedelegate to do (or omit to do) the relevant act, (A) as soon as available, a copy of each report if the Issuer is aware of the Issuer filed with default of the Commission agent or delegate and does not take the action available to it under the Exchange Act Transaction Documents to address the act or mailed to omission or where the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning Transaction Documents expressly provide that the Issuer as the Representatives may reasonably requestis so liable.
(xiie) So long as The Issuer will open and operate certain bank accounts in accordance with the Bonds are rated by Master Trust Deed and the Supplementary Terms Notice.
(f) Subject to the Master Trust Deed and any Rating AgencyTransaction Document to which it is a party, the Issuer will comply shall act on all directions given to it by the Manager in accordance with the 17g-5 Representations, other than (x) any noncompliance terms of the 17g-5 Representations that would not have a material adverse effect on Master Trust Deed.
(g) The Issuer shall properly perform the rating functions which are necessary for it to perform under all Transaction Documents in respect of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereofTrust.
Appears in 1 contract
Samples: Note Trust Deed (Crusade Global Trust No. 2 of 2006)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act (“Rule 424”) as in the opinion of Counsel for the Underwriters (as defined below) a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Storm Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or of, the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer willwill promptly notify the Representatives of such event and, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(viii) The Issuer or SCE ENO will, except as herein provided, pay or cause to be paid paid, all reasonable costs and expenses of the Issuer, the Indenture Trustee and the Underwriters incident to the performance of the obligations hereunder, including, without limiting the generality of the foregoing, (A) all costs, taxes and expenses incident to the issue and delivery of the Bonds to the Underwriters; (except transfer taxesB) in connection with (i) all costs and expenses incident to the preparation preparation, printing, reproduction and filing by it distribution of the Registration StatementStatement as originally filed with the Commission and each amendment or supplement thereto, the Pricing Prospectus (including any amendments and supplements thereto), the Final Prospectus (including any amendments and supplements thereto) ), and any Issuer Free Writing Prospectuses; (C) all reasonable fees, disbursements and expenses of (1) the Issuer’s counsel, (ii2) ENO’s counsel, (3) the issuance and delivery of the Bonds as provided in Section 7 hereof Indenture Trustee’s counsel, (including, without limitation, reasonable fees and disbursements of 4) Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees)Underwriters, (iii5) the Issuer’s accountants and (6) ENO’s accountants; (D) all fees charged by the Rating Agencies in connection with the rating of the Bonds; (E) all fees of DTC in connection with the book-entry registration of the Bonds; (F) all costs and expenses incurred in connection with the qualification of the Bonds for sale under blue-sky the laws of such jurisdictions in the United States as the Representatives may designate, together with costs and expenses in connection with any filing with FINRA with respect to the transactions contemplated hereby (including counsel fees not to exceed $15,00010,000), ; (ivG) the all costs and expenses of printing and delivery distributing all of the documents in connection with the Bonds; and (H) all Council approved fees, costs and expenses of the Council and its advisors in connection with the issuance of the Bonds.
(iii) The Issuer will cause the Pricing Prospectus and the Final Prospectus to be filed with the Commission pursuant to Rule 424 as soon as practicable and advise the Underwriters of reasonable quantities any stop order suspending the effectiveness of the Registration Statement and, except as or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If the sale of the Bonds provided for herein is not consummated because any condition set forth in Section 8(a)(iv9 hereof is not satisfied, because of any termination pursuant to Section 12 hereof or because of any refusal, inability or failure on the part of ENO or the Issuer to perform any agreement herein or comply with any provision hereof other than by reason of a default (including under Section 7 hereof) hereof, by any of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default)Underwriters, 9, 10 ENO or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters upon demand for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred by them in contemplation connection with the proposed purchase and sale of the performance of this Underwriting AgreementBonds. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(viiv) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed asset‑backed securities (other than the Bonds).
(viiivi) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb9(aa) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer prior to, on or after the Closing Date, the Issuer shall furnish such documents and take such other actionsactions to the extent reasonably requested by any Rating Agency.
(ixvii) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall alsoshall, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(xviii) The Issuer and SCE will not file any amendment furnish to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Representatives and Counsel for the Underwriters”, without charge, copies of the Registration Statement (including exhibits thereto), shall reasonably object by written notice to SCE and as many copies of the Pricing Prospectus and the IssuerFinal Prospectus and any amendment or supplement thereto as the Representatives may reasonably request.
(xiix) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC Council pursuant to the Financing Act and the Financing Order including, but not limited to, any issuance advice letter (“Issuance Advice Letter”) filed with the Council pursuant to the Financing Order with respect to the Storm Recovery Bonds or any routine semi-annual or nonmore frequent true-routine True-Up Adjustment filingsup request letters, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xiix) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and representations, warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Entergy New Orleans Storm Recovery Funding I, L.L.C.)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters thatas follows:
(ia) The Issuer will upon request promptly deliver it will, at any time prior to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period notify AMBAC of time (not exceeding nine months) after the Final Prospectus anything which has been filed with the Commission pursuant or may reasonably be expected to Rule 424 under the Securities Act as have rendered or will or may render untrue or incorrect in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of respect any of the Underwriters, then such Underwriters shall assume the expense of preparing representations and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out warranties in Section 3(d) above.
(v) The Issuer will furnish 2.01 as if they had been made or given at such proper information as may be lawfully required time with reference to the facts and otherwise cooperate circumstances then subsisting, which change is material in qualifying the Bonds for offer and sale under the blue-sky laws context of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses issue and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the issue of the Policy;
(b) neither it nor any of its affiliates (including any person acting on behalf of the Issuer or any of its affiliates) will engage in any directed selling efforts with respect to the Bonds or will offer or sell, any Bonds in any circumstances which would require the registration of any of the Bonds under the Securities Act and that the Issuer and its affiliates will comply with the offering restrictions requirement of Regulation S under the Securities Act;
(yc) any noncompliance arising from the breach by an Underwriter duties and obligations of the Issuer herein shall continue in full force and effect until all of the obligations of the Issuer hereunder are fully discharged, notwithstanding payment of all amounts due in respect of the Bonds, provided that the representations and warranties and covenants set forth of the Issuer in Section 13 hereof2.01 are made as of the Closing Date;
(d) it will provide AMBAC with copies of all reports relating to violations of the PES Licence received by the Issuer or any Subsidiary from the Electricity Regulator, as soon as reasonably practicable after delivery or receipt thereof;
(e) subject to Applicable Requirements, it will, upon reasonable prior notice by AMBAC make appropriate management personnel available for a meeting (whether conducted over the telephone or otherwise) with AMBAC at a mutually acceptable time and place to discuss the Issuer's operational and financial performance over the preceding financial year and its financial plans for the next three years;
(f) subject to Applicable Requirements, it will, as soon as reasonably practicable after request by AMBAC, provide appropriate personnel for a meeting (whether conducted over the telephone or otherwise) with AMBAC at a mutually acceptable time and place if there occurs a significant change in the financial position of the Issuer or any Subsidiary which is material to the Issuer as shown in its most recent financial statements or in any report produced by the Electricity Regulator concerning the Issuer or any of its Subsidiaries;
(g) subject to Applicable Requirements, it will provide AMBAC with quarterly management accounts, unaudited interim accounts and audited annual financial statements, as soon as reasonably practicable after production thereof and in any event within 45 days for quarterly accounts, and 90 days for interim accounts and 120 days for annual accounts;
(h) save as provided in the Conditions, all payments of principal of and interest (including interest accruing after a payment default) on the Bonds ("Payments") by the Issuer shall be made free of withholding or deduction for, or on account of, any present tax, assessment or other governmental charge of whatever nature ("Tax") imposed or levied by or on behalf of the United Kingdom or any political subdivision or taxing authority therein or thereof, unless the withholding or deduction of such Tax, is required by law.
Appears in 1 contract
Samples: Insurance and Indemnity Agreement (Midamerican Energy Holdings Co /New/)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed signed copy of the Registration StatementStatement as originally filed or, to the extent a signed copy is not available, a conformed copy, certified by an officer of the Issuer to be in the form as originally filed filed, including all Incorporated Documents and exhibits and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Transition Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of of, the Pricing Package Prospectus, the Pricing Term Sheet and each other Issuer Free Writing Prospectus, considered together (the “Pricing Package”) or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d3(e) above.
(v) As soon as practicable, but not later than 16 months, after the date hereof, the Issuer will make generally available to its security holders, an earnings statement (which need not be audited) that will satisfy the provisions of Section 11(a) of the Securities Act.
(vi) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States such jurisdictions as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vivii) The Issuer or SCE the Company will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency trustee and CPUC advisor Rating Agency fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), and (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package Prospectus and Final Prospectus. If The Issuer shall not, however, be required to pay any amount for any expenses of the Underwriters, except that, if the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections Section 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000100,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(viiviii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viiiix) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb9(y) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ixx) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with may deregister under the Commission unless permitted under applicable law Commission’s rules and the terms of the Basic Documentsregulations. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parentwebsite, such information as required by Section 3.07(g3.07(d) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g3.07(d) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(xxi) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx & XxXxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuerin writing.
(xixii) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC PUCT pursuant to the Financing Order including, but not limited to, any issuance advice letter Issuance Advice Letter or any routine annual or non-routine more frequent True-Up Adjustment filingsAdvice Letters, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xiixiii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (CenterPoint Energy Transition Bond Co IV, LLC)
Covenants of the Issuer. The Issuer Company agrees and covenants and agrees with the several Underwriters that:
(a) prior to the Closing Date, the Company shall, and shall cause each of the Subsidiaries to, (i) The Issuer will upon request promptly deliver to cause the Representatives and Counsel to the Underwriters a conformed copy business of the Registration StatementGroup to be conducted in all material aspects in the ordinary course of business and (ii) not take any action that, certified by if taken after the Closing, would constitute (or, with the giving of notice or the passage of time, would constitute) an officer Event of Default (as defined in the Instrument) or require the Investor’s consent under the terms of the Issuer to be in the form as originally filed and all amendments theretoNotes.
(iib) The Issuer will deliver to the UnderwritersCompany shall pay (i) any stamp, as soon as practicable after issue, registration, documentary or other taxes and duties, including interest and penalties in the date hereofCayman Islands, as many copies of the Pricing Prospectus Hong Kong, PRC and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause all other relevant jurisdictions payable on or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing the creation and furnishing to issuance of the Underwriters at Notes, the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package New Shares or the Final Prospectus New ADSs or (B) making an appropriate filing pursuant to Section 13 the execution or Section 15 delivery of the Exchange Act, which will supplement or amend the Pricing Package this Agreement or the Final Prospectus so thatInstrument; and (ii) any value added, as supplemented turnover or amended, it will not contain any untrue statement of a material fact or omit similar tax payable in respect thereof (and references in this Agreement to state any material fact necessary in order such amount shall be deemed to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing include any such amendment or supplement. The Issuer will also fulfill its obligations set out taxes so payable in Section 3(d) aboveaddition to it).
(vc) The Issuer will furnish the Company shall (i) promptly notify the Investor of any change affecting any of its representations, warranties, agreements and/or indemnities herein at any time prior to payment being made to the Company on the Closing Date and (ii) take such proper information steps as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed reasonably requested by the Issuer Investor to be unduly burdensomeremedy the same.
(vid) The Issuer or SCE will, except as herein provided, pay or cause the Company shall obtain all authorizations relating to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it issuance of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing ProspectusesNotes, (ii) the issuance and delivery remittance of the Bonds as provided proceeds received by the Company from the sale of the Notes to any entity organized in Section 7 hereof (includingthe PRC, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees), (iii) the qualification use of such proceeds by any entity organized in the PRC, including the filing by a PRC Subsidiary with NDRC of the Bonds under blue-sky laws requisite information and documents within ten (including counsel fees not to exceed $15,000), (iv10) Business Days after the printing and delivery to the Underwriters date of reasonable quantities issuance of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates Notes in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profitsNDRC Circular.
(viie) During the period from Company shall and shall cause the date of this Underwriting Agreement Group to the date that is five days complete after the Closing Datecertain operational improvement steps in accordance with a plan to be furnished by the Investor and agreed by the Company.
(f) for so long as any Notes remain outstanding, the Issuer Company shall, and shall cause all other Group Companies to, comply with and require their respective Affiliated Persons, in their capacities as such, to comply with all applicable Laws, including the Securities Laws; in particular, the Company shall and shall cause all other Group Companies to strictly comply with all applicable Anti-Corruption Laws, Anti-Money Laundering Laws, and Sanctions in their business operations. The Company further covenants to the Investor that the Company will not, without the prior written consent of the Representativeswill take reasonable efforts to ensure that its Affiliated Persons will not, offerand will cause all other Group Companies not to (and will cause all other Group Companies to take reasonable efforts to ensure that their respective Affiliated Persons will not), sell or contract offer to sellpay, promise to pay, or otherwise dispose ofauthorize the payment of any money or anything of value to any Government Official (including any Government Officials to whom such Group Company or its Affiliated Person knows or ought to know that all or a portion of such money or things of value will be offered, given or promised, directly or indirectly) for the purpose of (1) influencing any act or decision of Government Officials in their official capacity; (2) inducing Government Officials to act or omit to act in violation of lawful duties; (3) securing any improper advantage; (4) inducing Government Officials to influence or affect any act or decision of any Governmental Authority; or (5) assisting any Group Company in obtaining or retaining business, or announce directing business to, such member. The Company shall cause the offering ofGroup to maintain a reasonably complete financial record and reasonably effective internal control measures in accordance with applicable Laws, including Anti- Corruption Laws and GAAP. The Company shall provide the Investor with reasonable access to the books and records of the Group and shall cooperate with any asset-backed securities (other than compliance audit or inquiry conducted by the Bonds)Investor.
(viiig) To the extent, if any, Company shall maintain its eligibility to register the Ordinary Shares (or such Ordinary Shares in the form of ADSs) for resale by the Noteholder on Form F-3.
(h) the Company agrees and undertakes that the Investor may exercise its rights in respect of any rating necessary to satisfy and all the condition Ordinary Shares (or such Ordinary Shares in the form of ADS) convertible from any Notes held by the Investor in accordance with the terms set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actionsSchedule 1 hereto.
(ixi) For a period from in case of any breach of the undertakings listed in Sections 6 (f), (g) or (h), the Investor shall have the right, at the Investor’s option, to require the Company to, and the Company shall, within ten (10) Business Days of the date of this Underwriting Agreement until the retirement notice requiring such repurchase, repurchase for cash all of such Investor’s Notes, or any portion thereof that is an integral multiple of $100,000 in principal amount, at a repurchase price that is equal to 100% of the Bonds or until such time as principal amount of the Underwriters shall cease Notes to maintain a secondary market in the Bondsbe repurchased, whichever occurs firstplus accrued and unpaid interest to, but excluding, the Issuer shall file with the Commission, and date such repurchase price is fully paid to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunderInvestor.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Samples: Convertible Note Purchase Agreement (Alibaba Group Holding LTD)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) 3.1 The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many Managing Broker-Dealer such numbers of copies of the Pricing Prospectus Memorandum and Final Prospectus any amendment or supplement thereto, with all appendices thereto, as they the Managing Broker-Dealer may reasonably request.
(iii) The Issuer will cause or has caused request for the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable purposes contemplated by federal and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received noticeapplicable state securities laws. The Issuer also will use its reasonable best efforts deliver to prevent the issuance Managing Broker-Dealer such number of copies of any such stop order and, if issued, to obtain printed sales literature or other materials as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act Managing Broker-Dealer may reasonably request in connection with the offering Offering.
3.2 The Issuer will comply with all requirements imposed upon it by the rules and regulations of the Bonds.
(iv) IfSEC, during such period and by all applicable state securities laws and regulations, to permit the continuance of time (not exceeding nine months) after offers and sales of the Final Prospectus has been filed Securities, in accordance with the Commission pursuant to Rule 424 under the Securities Act as provisions of this Agreement and in the opinion of Counsel for Memorandum, and will amend or supplement the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus Memorandum in order to make the Pricing Package or Memorandum comply with the Final Prospectus not misleading in requirements of federal and applicable state securities laws and regulations.
3.3 If at any time any event occurs as a result of which the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or Memorandum would include an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or or, in view of the circumstances under which it was made, omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), therein not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will notnotify the Managing Broker-Dealer thereof, without effect the prior written consent preparation of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus Memorandum which will correct such statement or omission, and deliver to the Managing Broker-Dealer as many copies of such amendment or supplement to the Pricing Package during Memorandum as the period when a prospectus relating Managing Broker-Dealer may reasonably request.
3.4 The Issuer will apply the net proceeds from the Offering received by it in the manner set forth in the Memorandum.
3.5 Subject to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE Managing Broker-Dealer’s actions and the Issuer.
(xi) So long as any actions of others in connection with the Bonds are outstandingOffering, the Issuer will comply with all requirements imposed upon it by Rule 506, the regulations thereunder, and applicable state securities laws. Upon request, the Issuer will furnish to the Representatives, if Managing Broker-Dealer a copy of such papers filed by the Issuer in connection with any such exemption.
3.6 The Issuer will furnish the holders of the Securities with the reports described in the Memorandum under “Reports,” and will deliver to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, Managing Broker-Dealer a copy of each such report of at the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent time that such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant furnished to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filingsholders of the Securities, and (C) from time to time, any such other information concerning the Issuer Issuer, as the Representatives may reasonably requestbe requested.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Samples: Managing Broker Dealer Agreement (White River Energy Corp.)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed signed copy of the Registration StatementStatement as originally filed or, to the extent a signed copy is not available, a conformed copy, certified by an officer of the Issuer to be in the form as originally filed and filed, including all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and the Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Pricing Prospectus and the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act (“Rule 424”) as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) As soon as practicable, but not later than 12 months after the date hereof, the Issuer will make generally available to its security holders, an earnings statement (which need not be audited) that will satisfy the provisions of Section 11(a) of the Securities Act with respect to the Bonds.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of such jurisdictions as the Representatives may designate; provided that neither the Issuer, Potomac Edison nor PE Renaissance shall be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer, Potomac Edison or PE Renaissance, as applicable, to be unduly burdensome.
(vi) The Issuer will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Dxx Xxxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to Potomac Edison and the Issuer.
(vii) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities ActAct (“Rule 172”)), any event relating to or affecting the Issuer, the Bonds or the Recovery Transferred Environmental Control Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or of, the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act172), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act172), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(vviii) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing ProspectusesProspectus, (ii) the issuance and delivery of the Bonds as provided in Section 7 8 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC PSCWV financial advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000)laws, (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement andStatement, except as provided the Pricing Prospectus and Final Prospectus and (v) any amendment or supplement to the Registration Statement, Pricing Prospectus, or Issuer Free Writing Prospectus required to be filed with the Commission to correct any untrue statement of a material fact or omission of any statement necessary to make the statements therein, in Section 8(a)(iv) hereof, the light of the Pricing Package circumstances in which they were made, not misleading, the result of which requires the reforming of any contracts of sale of the Bonds made by the Underwriters (including any damages or other amounts payable in connection with legal and Final Prospectuscontractual liability). If the obligation of the Underwriters to purchase the Bonds terminates this Underwriting Agreement shall be terminated in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 Section 11 or 12 13 hereof, the Issuer shall not be required to pay any amount for any expenses of the Underwriters or SCE (i) for any fees and expenses of counsel for the PSCWV financial advisor, except that the Issuer will reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding $[__________], incurred in contemplation of the performance of this Underwriting Agreement and will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(viiix) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viiix) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb10(z) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ixxi) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that , and the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic DocumentsCommission. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parentabove, such information as required by Section 3.07(g3.07(e) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g3.07(e) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(xxii) The Issuer and SCE will not file any amendment to During a period of one year from the effective date of the Registration Statement or amendment or supplement Statement, to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, Representatives (A) as soon as they are available, a copy copies of each report any reports and financial statements of the Issuer furnished to or filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent Commission, other than such reports and financial statements that are not publicly available on the Commission’s website), EXXXX system; and (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any such additional information concerning the business and financial condition of the Issuer as the Representatives may from time to time reasonably requestrequest (such financial statements to be on a consolidated basis to the extent the accounts of the Issuer are consolidated in reports furnished to its shareholders generally or to the Commission).
(xiixiii) So long The Issuer will file with the Commission such information on Form 10-D or Form 10-K as may be required by Rule 463 under the Bonds are rated by any Rating AgencySecurities Act.
(xiv) If the Issuer elects to rely upon Rule 462(b) under the Securities Act (“Rule 462(b)”), the Issuer will comply shall file a Rule 462(b) Registration Statement with the 17g-5 RepresentationsCommission in compliance with Rule 462(b) by 10:00 P.M., other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect Washington, D.C. time, on the rating date of this Agreement, and the Bonds Issuer shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the Bonds or (ypayment of such fee pursuant to Rule 111(b) any noncompliance arising from under the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereofSecurities Act.
Appears in 1 contract
Samples: Underwriting Agreement (PE Environmental Funding LLC)
Covenants of the Issuer. The Issuer Company covenants and agrees with the several Underwriters thatas follows:
(ia) The Issuer will upon request promptly deliver If and to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with extent the offering of the Bonds.
Remarketed Notes in the Remarketing is required (ivin the view of counsel for the Company) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 be registered under the Securities Act as in effect at the opinion time of Counsel the Remarketing, the Company shall (Section 5(a) of this Agreement, the “Registration Covenants”):
(i) if the Registration Statement is an “automatic shelf registration statement” on Form S-3ASR and if, at any time prior to the Remarketing Settlement Date, the Company receives from the Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to use the automatic shelf registration statement form, then (A) promptly notify the Remarketing Agent, (B) promptly file a new registration statement or post-effective amendment on the proper form relating to the Remarketed Notes, in a form satisfactory to the Remarketing Agent, (C) use its best efforts to cause such registration statement or post-effective amendment to be declared effective and (D) promptly notify the Remarketing Agent of such effectiveness; take all other action necessary or appropriate to permit the public offering and sale of the Remarketed Notes to continue as contemplated in the registration statement that was the subject of the Rule 401(g)(2) notice or for which the Underwriters a prospectus covering Company has otherwise become ineligible. References herein to the Bonds is Registration Statement shall include such new registration statement or post-effective amendment, as the case may be;
(ii) pay the required Commission filing fees relating to the Remarketed Notes within the time required by law Rule 456(b)(1) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act;
(iii) prepare the Prospectus, file any such Prospectus pursuant to the Securities Act within the period required by the Securities Act and the rules and regulations thereunder and use commercially reasonable efforts to cause, if not already effective, the Registration Statement to be delivered declared effective by the Commission prior to the applicable Remarketing Date (it being understood that, for so long as there is a material business transaction or development that has not yet been publicly disclosed, other than in connection with sales an Optional Remarketing, the Company will not be required to file such Registration Statement or provide such a Prospectus until the Company has publicly disclosed such transaction or development);
(iv) file with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company, be required by an Underwriter the Securities Act or dealer requested by the Commission;
(v) advise the Remarketing Agent promptly after it receives notice thereof, of the time when, (A) prior to the Remarketing Settlement Date, any amendment to the Registration Statement has been filed or becomes effective or, (B) before, on or after the Remarketing Settlement Date, any supplement to the Prospectus or any amended Prospectus has been filed, and in each such case excluding documents filed under the Exchange Act incorporated by reference and in each case of (A) and (B) furnish the Remarketing Agent with copies of such notice;
(vi) file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a) or (c), 14 or 15(d) of the Exchange Act subsequent to the Commencement Date and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Remarketed Notes (including in circumstances where such requirement may be satisfied pursuant to Rule 172 172), and during such same period to advise the Remarketing Agent, promptly after it receives notice thereof, (A) of the time when any amendment to any Registration Statement has become effective or any supplement to any Prospectus or any amended Prospectus has been filed, (B) of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus, (C) of the suspension of the qualification of the Remarketed Notes for offering or sale in any jurisdiction, (D) of the initiation or threatening of any proceeding or examination for any such purpose or pursuant to Section 8A of the Securities Act, or (E) of any request by the Commission for the amending or supplementing of any Registration Statement or Prospectus or for additional information; and in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any Prospectus or suspending any such qualification, use promptly its best efforts to obtain its withdrawal;
(vii) if reasonably requested by the Remarketing Agent, prepare a final term sheet for the Remarketed Notes, containing solely a description of the Remarketed Notes, in a form agreed to with the Remarketing Agent, and file such final term sheet and all other Issuer Free Writing Prospectuses required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Securities Act within the time required by such Rule;
(viii) furnish promptly to the Remarketing Agent such copies of the following documents in such quantities as the Remarketing Agent shall reasonably request: (a) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits); (b) the Preliminary Prospectus and any amendment or supplement thereto; (c) the Prospectus and any amendment or supplement thereto; (d) any Issuer Free Writing Prospectus and any amendment or supplement thereto, and (e) any document incorporated by reference in the Prospectus (excluding exhibits thereto); and, if at any time when delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act)) is required in connection with the Remarketing, any event relating to or affecting the Issuer, the Bonds or the Recovery Property or development shall have occurred as a result of which (1) the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (Prospectus as defined below) should be set forth in a supplement to, then amended or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus (or in lieu thereof, the Pricing Package notice referred to in Rule 173(a) under the Securities Act) is delivered, not misleading, or (2) if for any other reason it shall be necessary, in the reasonable judgment of the Company, during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Final Exchange Act, or (3) if it shall be necessary during such same period to amend or supplement an Issuer Free Writing Prospectus is delivered in order for the Issuer Free Writing Prospectus, as so amended or supplemented, not to a purchaser conflict with the information then contained in the Registration Statement, then in each case notify the Remarketing Agent and, upon its request, file such document and prepare and furnish without charge to the Remarketing Agent and to any dealer in securities as many copies as the Remarketing Agent may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance or an amended or supplemented Issuer Free Writing Prospectus that will not conflict with the Registration Statement;
(including in circumstances where such requirement may be satisfied ix) during the time between the applicable Commencement Date and the Remarketing Settlement Date, prior to filing with the Commission (a) any amendment to the Registration Statement or supplement to the Prospectus or (b) any Prospectus pursuant to Rule 172 424 under the Securities Act, furnish a copy thereof to the Remarketing Agent; and not file any such amendment or supplement that shall be reasonably disapproved by the Remarketing Agent;
(x) as soon as practicable, but in any event not later than eighteen months, after the date of a Successful Remarketing, to make generally available to its security holders an earnings statement of the Company (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.and
(vxi) The Issuer will furnish take such proper information action as the Remarketing Agent may be lawfully required and otherwise cooperate reasonably request in qualifying order to qualify the Bonds Remarketed Notes for offer and sale under the blue-sky securities or “blue sky” laws of such jurisdictions as the states Remarketing Agent may reasonably request and will continue such qualifications in effect so long as required for distribution of the United States as the Representatives may designateRemarketed Notes; provided that in no event shall the Issuer shall not Company be required to qualify as a foreign limited liability company or dealer corporation in securitiesa jurisdiction in which it is not so qualified, to file any consents a general consent to service of process under the laws of in any jurisdiction, jurisdiction or meet to submit to any other requirements deemed by the Issuer to be which it deems unduly burdensome.
(vixii) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with Company shall pay: (i) the costs incident to the preparation and filing by it printing of the Registration Statement, Pricing Prospectus and Final Prospectus (including if any, any amendments and supplements thereto) and Preliminary Prospectus, any Issuer Free Writing ProspectusesProspectus, any Prospectus and any other Remarketing Materials and any amendments or supplements thereto; (ii) the issuance costs of distributing the Registration Statement, if any, any Prospectus and delivery any other Remarketing Materials and any amendments or supplements thereto; (iii) any fees and expenses of qualifying the Remarketed Notes under the securities laws of the Bonds several jurisdictions as provided in Section 7 hereof 5(a)(xi) and of preparing, printing and distributing a Blue Sky Memorandum, if any (including, without limitation, including any related reasonable fees and disbursements expenses of Counsel for counsel to the Underwriters and all trustee, rating agency and CPUC advisor feesRemarketing Agent), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), ; (iv) any fees charged by investment rating agencies for rating of the printing Remarketed Notes; (v) all other costs and delivery expenses incident to the Underwriters of reasonable quantities performance of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, obligations of the Pricing Package Company hereunder and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 Remarketing Agent hereunder; and (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (ivi) will reimburse the Underwriters for the reasonable fees and disbursements expenses of Counsel for counsel to the UnderwritersRemarketing Agent in connection with the review by the Financial Industry Regulatory Authority, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation Inc. of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profitsRemarketed Notes.
(viib) During The Company shall furnish the period from Remarketing Agent with such information and documents as the date of this Underwriting Agreement Remarketing Agent may reasonably request in connection with the transactions contemplated hereby, and to make reasonably available to the date Remarketing Agent and any accountant, attorney or other advisor retained by the Remarketing Agent such information, and such access to the appropriate officers, employees and accountants of the Company, that is five days after parties would customarily require, and reasonably requested by the Closing Remarketing Agent, in connection with a due diligence investigation conducted in accordance with applicable securities laws.
(c) Between the applicable Commencement Date and the applicable Remarketing Settlement Date, the Issuer Company will not, without the prior written consent of the RepresentativesRemarketing Agent (which consent may be withheld at the reasonable discretion of the Remarketing Agent), directly or indirectly, sell, offer, contract to sell or contract grant any option to sell, or otherwise dispose of, directly or indirectly, or announce any debt securities which mature more than one year after the offering of, any asset-backed securities (other than applicable Remarketing Settlement Date of the Bonds)Company similar to the Remarketed Notes.
(viiid) To The Company represents and agrees that, unless it obtains the extentprior written consent of the Remarketing Agent, which consent shall not be unreasonably withheld, and the Remarketing Agent represents and agrees that, unless it obtains the prior written consent of the Company, it has not made and will not make any offer relating to the Remarketed Notes that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 of the Act), required to be filed by the Company with the Commission or retained by the Company under Rule 433; provided that, if any, that any rating necessary to satisfy the condition set forth prepared and used in accordance with Section 9(bb5(f) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parentAgreement, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer prior written consent shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture deemed given with respect to any final term sheet. Any such free writing prospectus consented to in writing by the BondsCompany or the Remarketing Agent, as the case may be, is hereinafter referred to as a “Permitted Free Writing Prospectus”. To the extent The Company represents that the Issuer’s obligations are terminated or limited by it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an amendment to Section 3.07(g) “issuer free writing prospectus” (as defined in Rule 433 of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if has complied and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance requirements of Rules 164 and 433 of the 17g-5 Representations Securities Act applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
(e) The Company will prepare a final term sheet relating to the Remarketed Notes, containing only information that would not have a material adverse effect on describes the rating final terms of the Bonds or Remarketed Notes after providing the Bonds or Remarketing Agent and its legal counsel with a reasonable opportunity to review and comment on such final term sheet (ysuch final term sheet to be in form and substance as last reviewed by the Remarketing Agent and the Company), and will file such final term sheet within the period required by Rule 433(d) any noncompliance arising from the breach by an Underwriter of the representations Securities Act following the date such final terms have been established for the Remarketed Notes. Any such final term sheet is an Issuer Free Writing Prospectus and warranties and covenants set forth in Section 13 hereofa Permitted Free Writing Prospectus for purposes of this Agreement.
Appears in 1 contract
Samples: Purchase Contract and Pledge Agreement (Exelon Corp)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver use its best efforts to the Representatives and Counsel to the Underwriters a conformed copy of cause the Registration Statement, certified by an officer if not effective at the Execution Time and any amendment thereto, to become effective. Prior to the termination of the Issuer to be in offering of the form as originally filed and all amendments thereto.
(ii) The Bonds, the Issuer will deliver not file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the UnderwritersBasic Prospectus unless the Issuer has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus Prospectus, properly completed in a form approved by you, and any supplement thereto to be filed with the Commission SEC pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Issuer will promptly advise the Representative (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective, (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the SEC pursuant to Rule 424 under 424(b), (iii) when, prior to termination of the Securities Act as soon as practicable and will advise offering of the Underwriters Bonds, any amendment to the Registration Statement shall have been filed or become effective, (iv) of any request by the SEC for any amendment of the Registration Statement or supplement to the Final Prospectus or for any additional information, (v) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding therefor for that purpose and (vi) of which the receipt by the Issuer shall have received noticeof any notification with respect to the suspension of the qualification of the Bonds for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(ivii) If, during such period of at any time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters when a prospectus covering relating to the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or occurs as a result of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as then supplemented or amended, it will not contain would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances when under which they were made not misleading, or if it shall be necessary to amend the Pricing Package Registration Statement or supplement the Final Prospectus is delivered to a purchaser comply with the Act or the Exchange Act or the respective rules thereunder, the Issuer promptly will (including i) prepare and file with the SEC, subject to the second sentence of paragraph (a)(i) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (ii) supply any supplemented Prospectus to you in circumstances where such requirement quantities as you may be satisfied pursuant reasonably request.
(iii) As soon as practicable, the Issuer will use its reasonable efforts to cause the Trust to make generally available to the holders of the Bonds and the Representative an earnings statement or statements of the Issuer which will satisfy the provisions of Section 11(a) of the Act and Rule 172 158 under the Securities Act), not misleading; provided that should such event relate solely .
(iv) The Issuer will furnish to the activities of any of Representative and counsel for the Underwriters, then such Underwriters without charge, copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of any Preliminary Final Prospectus and the Final Prospectus and any supplement thereto as the Representative may reasonably request. The Issuer shall assume furnish or cause to be furnished to the expense Representative copies of preparing and furnishing any such amendment or supplementall reports required by Rule 463 under the Act. The Issuer will also fulfill its obligations set out in Section 3(d) abovepay the expenses of printing or other production of all documents relating to the offering.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying arrange for the qualification of the Bonds for offer and sale under the blue-sky laws of such jurisdictions as the states Representative may designate, will maintain such qualifications in effect so long as required for the distribution of the United States as Bonds or requested by the Representatives may designateRepresentative and will arrange for the determination of the legality of the Bonds for purchase by institutional investors; provided provided, however, that in no event shall the Issuer shall not be required obligated to qualify as a foreign limited liability company to do business in any jurisdiction where it is not now so qualified or dealer in securities, to file take any consents action that would subject it to service of process under in suits, other than those arising out of the laws offering or sale of the Bonds, in any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensomejurisdiction where it is not now so subject.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five Until 90 days after the Closing Datedate hereof, the Issuer will not, without the prior written consent of the RepresentativesRepresentative, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities of a trust or other special purpose vehicle (other than the Bonds).
(vii) For a period from the date of this Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer will deliver to the Representative the annual statements of compliance and the annual independent auditor's servicing reports furnished to the Issuer or the Trustee pursuant to the Servicing Agreement or the Indenture, as applicable, as soon as such statements and reports are furnished to the Issuer or the Trustee.
(viii) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representative (i) as soon as available, a copy of each report of the Issuer filed with the SEC under the Exchange Act, or mailed to holders of the Bonds, (ii) a copy of any filings with the New Hampshire Public Utilities Commission ("NHPUC") pursuant to the Finance Order, including, but not limited to, any annual or more frequent adjustment filings, and (iii) from time to time, any information concerning the Company or the Issuer, as the Representative may reasonably request.
(ix) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb6(l) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to for the Underwriters a conformed copy of the Registration Statement, certified by an officer or manager of the Issuer to be in the form as originally filed and all amendments thereto, including all consents and exhibits filed therewith.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable practicable, but in no event any later than the second business day after the pricing date, and will advise the Underwriters of any stop order issued by the Commission suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its every reasonable best efforts effort to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereofthereof by the Commission. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery RRB Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should is required to be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus Prospectus, as applicable, by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement; provided, further, that counsel for the Underwriters shall not have objected to such amendment or supplement pursuant to Section 8(a)(x) or Section 8(b)(x). The Issuer will also fulfill its obligations set out in Section 3(d) above.3(c)
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all reasonable expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable documented fees and out-of-pocket disbursements of Counsel for the Underwriters and all trustee, trustee and rating agency and CPUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,0005,000), and (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse (or cause to be reimbursed) the Underwriters for the reasonable documented fees and out-of-pocket disbursements of Counsel for the Underwriters, and (ii) will reimburse or cause to be reimbursed the Underwriters for their reasonable documented out-of-pocket expensesexpenses (other than fees of counsel covered in clause (i) above), such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb9(v) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actionsactions to the extent reasonably requested by any Rating Agency.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and not prohibited by the terms of the Basic Issuer Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the any periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, Underwriters or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the IssuerIssuer within two business days of notification thereof.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders bondholders (in each case to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not reasonably be expected to have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Covenants of the Issuer. (a) The Issuer covenants and agrees with the several Underwriters that:
that it will (i) The Issuer will upon request promptly deliver to the Representatives prepare and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed timely file with the Commission pursuant to under Rule 424 under 424(b) of the Securities Act as soon as practicable Rules and will advise Regulations a Prospectus in a form approved by the Underwriters Representatives containing information previously omitted at the time of any stop order suspending the effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations; (ii) not file any amendment to the Registration Statement or supplement to the institution of Prospectus, any proceeding therefor Preliminary Prospectus or any Issuer Free Writing Prospectus of which Issuer RBC Capital Markets Corporation and Xxxxxx Xxxxxx Partners LLC shall not previously have been advised and furnished with a copy or to which the Representatives shall have received notice. 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 definitive proxy or information statements required to be filed by the Issuer 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) The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order has not distributed and, if issuedwithout the prior consent of RBC Capital Markets Corporation and Xxxxxx Xxxxxx Partners LLC, will not distribute any prospectus or other offering material (including, without limitation, any offer relating to obtain as soon as possible the withdrawal thereofShares that would constitute a Free Writing Prospectus and content on the Issuer’s website that may be deemed to be a prospectus or other offering material) in connection with the offering and sale of the Shares, other than the materials referred to in Section 1(a). Each Underwriter represents and agrees that it has not made and, without the prior consent of the Issuer, RBC Capital Markets Corporation and Xxxxxx Xxxxxx Partners LLC, will not make, any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus. Any such Issuer Free Writing Prospectus the use of which has been consented to by the Issuer, RBC Capital Markets Corporation and Xxxxxx Xxxxxx Partners LLC is listed on Schedule III(a) or Schedule III(b) hereto. The Issuer has complied and will comply with the requirements of Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) Ifapplicable to any Issuer Free Writing Prospectus, during such period of time (not exceeding nine months) after the Final Prospectus has been filed including timely filing with the Commission pursuant to or retention where required and legending. The Issuer represents that it has satisfied, and agrees that it will satisfy, the conditions under Rule 424 433 under the Securities Act to avoid a requirement to file with the Commission any electronic road show. The Issuer agrees that if at any time following issuance of an Issuer Free Writing Prospectus any event has occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the IssuerRegistration Statement, the Bonds Pricing Prospectus or the Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making would include an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act)then prevailing, not misleading, the Issuer will give prompt notice thereof to RBC Capital Markets Corporation and Xxxxxx Xxxxxx Partners LLC and, if requested by RBC Capital Markets Corporation or Xxxxxx Xxxxxx Partners LLC, will prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission.
(c) Neither the Issuer nor any of its affiliates will take, directly or indirectly, any action designed to cause or result in, or that has constitutes the stabilization or manipulation of the price of any securities of the Issuer.
(d) The Issuer will advise the Representatives promptly (i) when the Registration Statement or any post-effective amendment thereto shall have become effective; provided that should such event relate solely (ii) of receipt of any comments from the Commission; (iii) of any request of the Commission for amendment of the Registration Statement or for supplement to the activities Prospectus or for any additional information; and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Underwriters, then such Underwriters shall assume Registration Statement or the expense use of preparing and furnishing the Prospectus or of the institution of any such amendment or supplementproceedings for that purpose. The Issuer will also fulfill use its obligations set out in Section 3(d) abovebest efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(ve) The Issuer 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 proper information as may be lawfully reasonably required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; that purpose, provided that the Issuer shall not be required to qualify as a foreign limited liability company corporation or dealer in securities, to file any consents a general consent to service of process under in any jurisdiction where it is not now so qualified or required to file such a consent. The Issuer 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 laws Representatives may reasonably request for distribution of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensomeShares.
(vif) The Issuer will deliver to, or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) upon the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereoforder of, the Issuer or SCE (i) will reimburse Representatives, from time to time, as many copies of any Preliminary Prospectus as the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting AgreementRepresentatives may reasonably request. The Issuer shall not in any event be liable to any of will deliver to, or upon the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Dateorder of, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package Representatives during the period when delivery of a prospectus relating to the Bonds Prospectus is required to be delivered under the Securities Act, without prior notice as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Issuer will deliver to the UnderwritersRepresentatives at or before the Closing Date, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any four signed copies of the Bonds are outstandingRegistration Statement and all amendments thereto including all exhibits filed therewith, the Issuer and will furnish deliver to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy Representatives such number of each report copies of the Issuer Registration Statement (including such number of copies of the exhibits filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website)therewith that may reasonably be requested) and of all amendments thereto, (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xiig) So long The Issuer will comply with the Securities Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the Bonds completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Issuer 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 Issuer 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) The Issuer 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 earnings 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 Securities Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available.
(i) Prior to the Closing Date, the Issuer will furnish to the Underwriters, as soon as they have been prepared by or are rated available to the Issuer, a copy of any unaudited interim financial statements of the Issuer for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus.
(j) The Issuer covenants and agrees that no offering, sale, short sale or other disposition of any Rating Agencyshares of Common Stock of the Issuer or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or any agreement for such) will be made for a period of 180 days after the date of this Agreement (the “Lock-Up Period”), directly or indirectly, by the Issuer otherwise than as contemplated hereunder or with the prior written consent of RBC Capital Markets Corporation and Xxxxxx Xxxxxx Partners LLC; provided, however, that if (1) the Issuer issues an earnings release or material news, or a material event relating to the Issuer occurs, during the last 17 days of the Lock-Up Period, or (2) prior to the expiration of the Lock-Up Period, the Issuer announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, the restrictions imposed hereunder shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event. The foregoing will not apply to (A) equity grants made to employees, consultants, officers or directors of the Issuer pursuant to employee benefit plans described in the Prospectus and the Disclosure Package; (B) issuances pursuant to the exercise or conversion of exercisable or convertible securities outstanding on the date of this Agreement; or (C) up to 2,983,293 shares of Common Stock (as adjusted for stock splits, stock dividends, recapitalizations and the like) issued in connection with a strategic partnership, joint venture, lending or similar arrangement, or in connection with the acquisition (by merger or otherwise) or license by the Issuer of any businesses, services or technologies; provided, however that the recipients of any shares issued under this clause (C) are restricted from selling, transferring or requiring registration of such shares during the Lock-Up Period; and provided, further that such shares are not issued until at least 30 days from the date of this Agreement.
(k) The Issuer will use its best efforts to list, subject to notice of issuance, the Shares on The NASDAQ Global Market.
(l) The Issuer has used its best efforts to cause each officer and director, and each major stockholder identified on Exhibit B attached hereto, to furnish to you, on or prior to the date of this Agreement, letter agreements (the “Lock-Up Agreements”), in form and substance satisfactory to the Underwriters.
(m) The Issuer intends to apply the net proceeds of its sale of the Shares as described under the heading “Use of Proceeds” in the Prospectus and the Disclosure Package and shall file reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Securities Act.
(n) The Issuer shall not invest, or otherwise use the proceeds received by the Issuer from its sale of the Shares in such a manner as would require the Issuer or any of the Subsidiaries to register as an investment company under the 0000 Xxx.
(o) The Issuer will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Issuer, a registrar for the Common Stock.
(p) The Issuer take such actions as reasonably requested by the Representatives to ensure that the Reserved Shares will be restricted from sale, transfer, assignment, pledge or hypothecation for such period and to such extent as may be required by the NASD and its rules; and the Issuer will comply with all applicable securities and other applicable laws, rules and regulations in each jurisdiction in which the 17g-5 Representations, other than (x) any noncompliance of Reserved Shares are offered in connection with the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereofDirected Share Program.
Appears in 1 contract
Samples: Equity Underwriting Agreement (U.S. Auto Parts Network, Inc.)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed signed copy of the Registration StatementStatement as originally filed or, to the extent a signed copy is not available, a conformed copy, certified by an officer of the Issuer to be in the form as originally filed and filed, including all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and the Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act (“Rule 424”) as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) As soon as practicable, but not later than 12 months after the date hereof, the Issuer will make generally available to its security holders, an earnings statement (which need not be audited) that will satisfy the provisions of Section 11(a) of the Securities Act with respect to the Bonds.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of such jurisdictions as the Representatives may designate; provided that neither the Issuer nor Mon Power shall be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer or Mon Power, as applicable, to be unduly burdensome.
(vi) The Issuer will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Xxx Xxxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to Mon Power and the Issuer.
(vii) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities ActAct (“Rule 172”)), any event relating to or affecting the Issuer, the Bonds or the Recovery Environmental Control Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or of, the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act172), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act172), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(vviii) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing ProspectusesProspectus, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC PSCWV financial advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000)laws, (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement andStatement, except as provided the Pricing Prospectus and Final Prospectus and (v) any amendment or supplement to the Registration Statement, Pricing Prospectus, or Issuer Free Writing Prospectus required to be filed with the Commission to correct any untrue statement of a material fact or omission of any statement necessary to make the statements therein, in Section 8(a)(iv) hereof, the light of the Pricing Package circumstances in which they were made, not misleading, the result of which requires the reforming of any contracts of sale of the Bonds made by the Underwriters (including any damages or other amounts payable in connection with legal and Final Prospectuscontractual liability). If the obligation of the Underwriters to purchase the Bonds terminates this Underwriting Agreement shall be terminated in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, Section 10 or 12 hereof, the Issuer shall not be required to pay any amount for any expenses of the Underwriters or SCE (i) for any fees and expenses of counsel for the PSCWV financial advisor, except that the Issuer will reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding $[ ], incurred in contemplation of the performance of this Underwriting Agreement and will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(viiix) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viiix) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb9(z) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ixxi) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commissionshall, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parentabove, such information as required by Section 3.07(g3.07(e) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g3.07(e) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(xxii) The Issuer and SCE will not file any amendment to During a period of one year from the effective date of the Registration Statement or amendment or supplement Statement, to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, Representatives (A) as soon as they are available, a copy copies of each report any reports and financial statements of the Issuer furnished to or filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent Commission, other than such reports and financial statements that are not publicly available on the Commission’s website), XXXXX system; and (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any such additional information concerning the business and financial condition of the Issuer as the Representatives may from time to time reasonably requestrequest (such financial statements to be on a consolidated basis to the extent the accounts of the Issuer are consolidated in reports furnished to its shareholders generally or to the Commission).
(xiixiii) So long [The Issuer will file with the Commission such information on Form 10-D or Form 10-K as may be required by Rule 463 under the Bonds are rated by any Rating AgencySecurities Act.]
(xiv) If the Issuer elects to rely upon Rule 462(b) under the Securities Act (“Rule 462(b)”), the Issuer will comply shall file a Rule 462(b) Registration Statement with the 17g-5 RepresentationsCommission in compliance with Rule 462(b) by 10:00 P.M., other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect Washington, D.C. time, on the rating date of this Agreement, and the Bonds Issuer shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the Bonds or (ypayment of such fee pursuant to Rule 111(b) any noncompliance arising from under the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereofSecurities Act.
Appears in 1 contract
Samples: Underwriting Agreement (MP Environmental Funding LLC)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) 3.1 The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many Broker-Dealer such numbers of copies of the Pricing Prospectus and Final Prospectus any amendment or supplement thereto, with all appendices thereto, as they the Broker-Dealer may reasonably request.
(iii) The Issuer will cause or has caused request for the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable purposes contemplated by federal and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received noticeapplicable state securities laws. The Issuer also will use its reasonable best efforts deliver to prevent the issuance Broker-Dealer such number of copies of any such stop order and, if issued, to obtain printed sales literature or other materials prepared by or on behalf of the Issuer as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act Broker-Dealer may reasonably request in connection with the offering Offering. In the event that the Issuer provides any copies of the Bonds.
(iv) IfProspectus to any party, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing promptly provide to the Broker-Dealer the number identifying the copy of the Prospectus provided to such party.
3.2 The Issuer will comply with all requirements imposed upon it by the Representatives shall occur that rules and regulations of the Securities and Exchange Commission, and by all applicable state securities laws and regulations, to permit the continuance of offers and sales of the Securities, in accordance with the provisions of this Agreement and in the Issuer’s reasonable judgment after consultation with Counsel for Prospectus, and will amend or supplement the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or Prospectus comply with the Final requirements of federal and applicable state securities laws and regulations.
3.3 If at any time any event occurs as a result of which the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or would include an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or or, in view of the circumstances under which it was made, omit to state any material fact necessary in order to make the statements thereintherein not misleading, in the light Issuer will notify the Broker-Dealer thereof, effect the preparation of an amendment or supplement to the Prospectus which will correct such statement or omission to the reasonable satisfaction of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act)Broker-Dealer, not misleading; provided that should such event relate solely and deliver to the activities Broker-Dealer as many copies of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. supplement to the Prospectus as the Broker-Dealer may reasonably request.
3.4 The Issuer will also fulfill its obligations apply the net proceeds from the Offering received by it in the manner set out forth in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Prospectus. Furthermore, Issuer shall not be required sell any Securities to qualify as investors residing in the Territory unless Cobalt receives and approves a foreign limited liability company or dealer in securities, to file any consents to service of process under third-party due diligence report for the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensomeOffering.
(vi) 3.5 The Issuer shall not make any written or SCE willoral representations or statements to investors that contradict or are inconsistent with the statements made in the Prospectus, except as herein provided, pay amended or cause to be paid supplemented.
3.6 The Issuer shall at all expenses and taxes (except transfer taxes) in connection with times (i) the preparation and filing by it comply with all reasonable requests of the Registration StatementBroker-Dealer that are necessary for compliance with all applicable federal and state securities laws and regulations; (ii) maintain its compliance with all applicable federal and state securities laws and regulations, Pricing Prospectus except to the extent where the failure to do so will not have a material adverse effect; and Final Prospectus (iii) pay all related fees and expenses (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor FINRA fees), (iii) in each case that are necessary or appropriate to perform the qualification respective obligations of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable outBroker-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of Dealer under this Underwriting Agreement. The Issuer shall not in any event be liable comply with and adhere to any all applicable policies and procedures of the several Underwriters for damages on account Broker-Dealer, provided to the Issuer prior to the execution of loss of anticipated profitsthis Agreement, except where the failure to do so will not materially and adversely affect the Broker-Dealer or the Issuer.
(vii) During 3.7 The Issuer shall be responsible for supervising the period activities and training of its respective employees, agents, and independent contractors.
3.8 The Issuer agrees to promptly notify the Broker-Dealer concerning any material communications from any body or authority with jurisdiction over the date activities being undertaken pursuant to this Agreement in connection with the Offering, or the performance of this Underwriting Agreement the obligations set forth herein, unless notification is expressly prohibited by such body or authority.
3.9 Subject to the date that is five days after Broker-Dealer’s actions and the Closing Dateactions of others in connection with the Offering, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed comply with all requirements imposed upon it by applicable federal and state securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documentslaws. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstandingUpon request, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, Broker-Dealer a copy of each report of such papers filed by the Issuer filed in connection with any such registration or exemption, as applicable.
3.10 During the Commission under Offering Period, the Exchange Act or mailed Issuer will deliver to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, Broker-Dealer a copy of any filings with report, documents, materials, or information provided to investors in the CPUC pursuant Offering by the Issuer or any other party, at the time that such reports, documents, materials, or information are furnished to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filingsholders of the Securities, and (C) from time to time, any such other information concerning the Issuer Issuer, as the Representatives may reasonably requestbe requested.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Covenants of the Issuer. The In further consideration of the agreements of the Placement Agents herein contained, the Issuer covenants and agrees with the several Underwriters thatas follows:
(ia) The Issuer will upon request promptly deliver to To furnish the Representatives and Counsel to Placement Agents, without charge, during the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be period mentioned in the form as originally filed and all amendments thereto.
paragraph (iic) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereofbelow, as many copies of the Pricing Prospectus Final Offering Circular and Final Prospectus any supplements and amendments thereto as they the Placement Agents may reasonably request.
(iiib) The Issuer will cause During the period mentioned in paragraph (c) below, before amending or has caused supplementing the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issuedOffering Circular, to obtain as soon as possible furnish the withdrawal thereof. The Issuer has complied Placement Agents a copy of each such proposed amendment or supplement, and will comply with Rule 433 under the Securities Act in connection with the offering of the Bondsto make no such proposed amendment or supplement to which either Placement Agent reasonably objects.
(ivc) If, during such period at any time prior to the earlier of time (not exceeding nine monthsx) 60 days after the Final Prospectus Closing Date, and (y) the completion of the initial sale and placement of the Placed Notes (with respect to which the Placement Agents shall promptly notify the Issuer if (i) not all the Placed Notes are sold on the Closing Date, the completion of such initial sale and placement of such Placed Notes and (ii) if a Placement Agent has been filed with the Commission pursuant not placed such Placed Notes, that such Placement Agent continues to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where hold such requirement may be satisfied pursuant to Rule 172 under the Securities ActNotes), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur or condition shall exist that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order makes it necessary to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package Offering Circular (as then amended or the Final Prospectus by either (Asupplemented) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package such Offering Circular (as then amended or the Final Prospectus supplemented) is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act)purchaser, not misleading; provided that should such event relate solely , or if it is necessary to amend or supplement the Offering Circular to comply with applicable law, to (i) prepare and furnish, at the Issuer's expense, to the activities Placement Agents, either amendments or supplements to the Offering Circular so that the statements in the Offering Circular as so amended or supplemented will not, in the light of the circumstances when the Offering Circular is delivered to a purchaser, be misleading or so that the Offering Circular will comply with applicable law and (ii) instruct the Placement Agents promptly to suspend the sale and placement of the Placed Notes until such amendments or supplements are prepared and furnished to the Placement Agents.
(d) During the period set forth in clause (c) above, not to publish or disseminate any material in connection with the offering of the Notes unless each Placement Agent shall have consented to the publication or use thereof, and not to publish or disseminate any material concerning the Collateral Manager unless each Placement Agent and the Collateral Manager shall have consented to the publication or use thereof.
(e) To advise the Placement Agents, promptly after the Issuer receives notice or obtains knowledge thereof, of the suspension of the qualification of the Notes for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding for any such purpose; and, in the event of the Underwritersissuance of any order suspending any such qualification, then such Underwriters shall assume upon the reasonable request of either Placement Agent, to use its commercially reasonable efforts to obtain its withdrawal promptly.
(f) During the period set forth in clause (c) above, to prepare promptly (at the expense of preparing the Placement Agents), upon the reasonable request of either Placement Agent, any amendments of or supplements to the Offering Circular that in the opinion of the Placement Agents may be reasonably necessary to enable the Placement Agents to continue to place the Placed Notes, subject to the approval of counsel to the Issuer and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) abovethe Placement Agents, as applicable.
(vg) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate During the period set forth in qualifying clause (c) above, to maintain the Bonds qualification of the Placed Notes for offer and sale under the blue-sky securities laws of such jurisdictions as either Placement Agent has requested for so long as required for the states placement of the United States as Placed Notes by the Representatives may designate; provided Placement Agents, except that the Issuer shall not be required in connection therewith to qualify as a foreign limited liability company corporation or dealer in securities, to file any consents execute a general consent to service of process in any jurisdiction.
(h) To hold the Placement Agents harmless against any documentary, stamp or similar transfer or issue tax, including any interest and penalties, on the issue, sale and delivery of the Placed Notes in accordance with the terms of this Agreement and on the execution and delivery of the Transaction Documents to which it is a party which are or may be required to be paid under the laws of the United States or any jurisdiction, political subdivision or meet any other requirements deemed taxing authority thereof or therein. All payments to be made by the Issuer to hereunder shall be unduly burdensomemade in U.S. Dollars, at such place as indicated by the relevant Placement Agent without withholding or deduction for or on account of any present or future taxes, duties or governmental charges whatsoever imposed or levied by or on behalf of any taxing authority therein, unless the Issuer shall pay such additional amounts as may be necessary in order that the net amounts after such withholding or deduction shall equal the amounts that would have been payable if no such withholding or deduction had been made.
(vii) The Issuer [Reserved].
(j) So long as the Notes are outstanding, not to become or SCE will, except as herein provided, pay own or cause control an investment company required to be paid registered under the Investment Company Act.
(k) To comply with all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus covenants applicable to it contained in the Transaction Documents.
(including any amendments and supplements theretol) and any If the Placement Agents have notified the Issuer Free Writing Prospectuses, (ii) the issuance and delivery that not all of the Bonds as provided in Section 7 hereof Placed Notes have been placed by the Placement Agents, pursuant to clause (includingc) above, without limitationto extend, reasonable fees and disbursements of Counsel for to use its best efforts to cause the Underwriters Collateral Manager to extend, to each prospective investor the opportunity to ask questions of, and all trusteereceive answers from, rating agency it and CPUC advisor fees)the Collateral Manager concerning their respective businesses, (iii) management and financial affairs, and the qualification Placed Notes and the terms and conditions of the Bonds under blue-sky laws (including counsel fees not offering thereof, and to exceed $15,000)obtain any information such prospective investors may consider necessary in making an informed investment decision or in order to verify the accuracy of the information set forth in the Offering Circular, (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, extent that the Issuer or SCE (i) the Collateral Manager, as the case may be, possesses the same or can acquire it without unreasonable effort or expense; provided, however, that it will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriterspermit, and (ii) will reimburse use its best efforts to cause the Underwriters for their Collateral Manager to permit, representatives of each Placement Agent to be present at, or participate in, any meeting or telephone conference between it or the Collateral Manager and any prospective investor, and will give the Placement Agents reasonable out-of-pocket expensesnotice thereof, and it will not furnish, and will use its best efforts to cause the Collateral Manager not to furnish, any such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable written information to any of prospective investor without first giving the several Underwriters for damages Placement Agents a reasonable opportunity to review and comment on account of loss of anticipated profitssuch information.
(viim) During the period from the date of this Underwriting Agreement to the date that So long as it is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For not a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time reporting company under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwiseexempt from reporting pursuant to Rule 12g3-2(b) under the Exchange Act, upon the request of a Holder or beneficial owner, it shall provide such obligations shall be correspondingly terminated Holder or limited hereunder.
(x) The Issuer beneficial owner and SCE will not file any amendment to a prospective purchaser designated by such Holder or beneficial owner the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xin) So long as any of Not to offer the Bonds are outstanding, the Issuer will furnish Placed Notes in or to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter own or any routine or nonaffiliated participant-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably requestdirected employee plan.
(xiio) So long as the Bonds are rated by any Rating AgencyTo cause its agents and advisors (including, without limitation, the Issuer will Collateral Manager) to comply with the 17g-5 Representationsrepresentations, other than certifications and covenants made by it in the engagement letter with S&P in connection with Rule 17g-5, and make accessible to any non-hired nationally recognized statistical rating organization all information provided to S&P in connection with the issuance and monitoring of credit ratings on the Secured Notes in accordance with Rule 17g-5.
(xp) any noncompliance The Issuer will use the net proceeds received by the Issuer from the sale of the 17g-5 Representations that would not have a material adverse effect on Notes pursuant to this Agreement in the rating manner specified in the Final Offering Circular under the caption "Use of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereofProceeds".
Appears in 1 contract
Samples: Placement Agency Agreement (Golub Capital BDC 3, Inc.)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act (“Rule 424”) as in the opinion of Counsel for the Underwriters (as defined below) a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Storm Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or of, the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer willwill promptly notify the Representatives of such event and, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(viii) The Issuer or SCE EAI will, except as herein provided, pay or cause to be paid paid, all reasonable costs and expenses of the Issuer, the Indenture Trustee and the Underwriters incident to the performance of the obligations hereunder, including, without limiting the generality of the foregoing, (A) all costs, taxes and expenses incident to the issue and delivery of the Bonds to the Underwriters; (except transfer taxesB) in connection with (i) all costs and expenses incident to the preparation preparation, printing, reproduction and filing by it distribution of the Registration StatementStatement as originally filed with the Commission and each amendment or supplement thereto, the Pricing Prospectus (including any amendments and supplements thereto), the Final Prospectus (including any amendments and supplements thereto) ), and any Issuer Free Writing Prospectuses; (C) all reasonable fees, disbursements and expenses of (1) the Issuer’s counsel, (ii2) EAI’s counsel, (3) the issuance and delivery of the Bonds as provided in Section 7 hereof Indenture Trustee’s counsel, (including, without limitation, reasonable fees and disbursements of 4) Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees)Underwriters, (iii5) the Issuer’s accountants and (6) EAI’s accountants; (D) all fees charged by the Rating Agencies in connection with the rating of the Bonds; (E) all fees of DTC in connection with the book-entry registration of the Bonds; (F) all costs and expenses incurred in connection with the qualification of the Bonds for sale under blue-sky the laws of such jurisdictions in the United States as the Representatives may designate, together with costs and expenses in connection with any filing with FINRA with respect to the transactions contemplated hereby (including counsel fees not to exceed $15,00010,000), ; and (ivG) the and all costs and expenses of printing and delivery distributing all of the documents in connection the Bonds.
(iii) The Issuer will cause the Pricing Prospectus and the Final Prospectus to be filed with the Commission pursuant to Rule 424 as soon as practicable and advise the Underwriters of reasonable quantities any stop order suspending the effectiveness of the Registration Statement and, except as or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If the sale of the Bonds provided for herein is not consummated because any condition set forth in Section 8(a)(iv9 hereof is not satisfied, because of any termination pursuant to Section 12 hereof or because of any refusal, inability or failure on the part of EAI or the Issuer to perform any agreement herein or comply with any provision hereof other than by reason of a default (including under Section 7 hereof) hereof, by any of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default)Underwriters, 9, 10 EAI or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters upon demand for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred by them in contemplation connection with the proposed purchase and sale of the performance of this Underwriting AgreementBonds. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(viiv) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viiivi) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb9(aa) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer prior to, on or after the Closing Date, the Issuer shall furnish such documents and take such other actionsactions to the extent reasonably requested by any Rating Agency.
(ixvii) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall alsoshall, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(xviii) The Issuer and SCE will not file any amendment furnish to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Representatives and Counsel for the Underwriters”, without charge, copies of the Registration Statement (including exhibits thereto), shall reasonably object by written notice to SCE and as many copies of the Pricing Prospectus and the IssuerFinal Prospectus and any amendment or supplement thereto as the Representatives may reasonably request.
(xiix) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC APSC pursuant to the Financing Act and the Financing Order including, but not limited to, any issuance advice report letter (“Issuance Report Letter”) filed with the APSC pursuant to the Financing Order with respect to the Storm Recovery Bonds or any routine semi-annual or nonmore frequent true-routine True-Up Adjustment filingsup request letters, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xiix) So long as the Bonds are rated by any Rating Agency, the Issuer will comply in all material respects with the 17g-5 Representationswritten representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties acknowledgements and covenants relating to compliance with Rule 17g-5 under the Exchange Act set forth in Section 13 hereofthe Rating Agency Letters.
Appears in 1 contract
Samples: Underwriting Agreement (Entergy Arkansas Restoration Funding, LLC)
Covenants of the Issuer. The Issuer For so long as any Securities held by PURCHASER remain outstanding, the ISSUER covenants and agrees with the several Underwriters PURCHASER that:
(ia) The Issuer ISSUER will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use undertake its reasonable best efforts to prevent maintain the issuance listing of any such stop order and, if issued, to obtain as soon as possible its Common Stock on the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under NASDAQ SmallCap Stock Market or the Securities Act in connection with the offering of the Bonds.OTC-Bulletin Board;
(ivb) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act Except as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition expressly set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon 7 below, ISSUER will not issue stop transfer instructions to its transfer agent in regard to the furnishing of documents Securities or the taking Common Stock issuable upon conversion and/or exercise thereof of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actionsSecurities;
(c) ISSUER will reserve from its authorized shares of Common Stock Three Million (3,000,00) shares to permit conversion and/or exercise thereof in full of all outstanding Securities.
(ixd) For a period from Notwithstanding the date of this Underwriting Agreement until foregoing, the retirement conversion and/or exercise thereof right of the Bonds or until PURCHASER set forth herein shall be limited such time as that in no instance shall the Underwriters shall cease to maintain a secondary market in maximum number of shares of Common Stock into which the BondsPURCHASER may convert these Securities exceed, whichever occurs firstat any one time, the Issuer shall file with the Commission, and an amount equal to the extent permitted by remainder of (I) 4.99% of the then issued and consistent with outstanding shares of Common Stock of the Issuer’s obligations under applicable lawISSUER following such conversion and/or exercise thereof, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required MINUS (without regard to II) the number of holders shares of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) Common Stock of the Exchange Act; provided that ----- ISSUER then held by the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunderPURCHASER.
(xe) The Issuer If required because the ISSUER's Common Stock will be listed on the NASDAQ-National Market System prior thereto and, WITHIN 20 DAYS OF THE INITIAL CLOSING, the Company's board of directors will unanimously approve, and SCE will not file any amendment to recommend that the Registration Statement or amendment or supplement to Company's shareholders approve, the Final Prospectus or amendment or supplement to issuance of more than 20% OF THE COMPANY'S OUTSTANDING COMMON STOCK upon the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any conversion and/or exercise thereof of the Bonds are outstanding, the Issuer will furnish to the Representatives, if Preferred Stock (including shares of Common Stock issued in lieu of interest) and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report exercise of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably requestWarrants. IN THE EVENT THAT SUCH SHAREHOLDER APPROVAL IS NOT OBTAINED THEN THE PURCHASER SHALL NOT BE OBLIGATED TO COMPLETE THE SUBSEQUENT TRANCHES.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or preventing the use of the Registration Statement, or the institution of any proceeding therefor of which the Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 and Rule 163B under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Storm Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d3(e) above. The Issuer will advise the Underwriters promptly in writing when any supplement to the Pricing Package, the Final Prospectus or any amendment to the Final Prospectus has been filed or distributed.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, certain reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC LPSC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Issuer Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE Cleco Power will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE Cleco Power and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC LPSC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine semi-annual, interim or non-routine quarterly True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters Sponsor that:
(ia) The Issuer it will upon request promptly take all such acts and execute, file and deliver all such documents, amendments, notices and information as may be necessary to cause the Representatives and Counsel purchasers of Securities to the Underwriters a conformed copy become Security Holders of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.Issuer;
(iib) The Issuer it will deliver to execute or procure the Underwriters, as soon as practicable after the date hereof, as many copies execution of the Pricing Prospectus all documents and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent take or cause to be taken all steps which may be reasonably necessary to enable the issuance transactions contemplated herein to be completed;
(c) it will notify the Sponsor promptly in writing of the full particulars of any such stop order andmaterial change, if issuedwhether actual, anticipated or threatened, in any material fact stated or referred to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for Prospectus or which would result in an omission from the Underwriters Prospectus to state a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order material fact necessary to make the Pricing Package or the Final Prospectus any statement contained therein not misleading in the light of the circumstances when in which it is delivered made;
(d) during the period of distribution, distribution to the public or primary distribution to the public (as contemplated by the Securities Law) of the Securities, it will advise the Sponsor promptly of any request of any securities commission or other securities authority for a purchaser cease trading order relating to the Securities, or of the institution or threat of institution of any proceedings for that purpose, or of the receipt by it, or its counsel AG2432.386 [097] of any material communication from any securities commission or other securities authority relating to the Prospectus or any supplements or amendments thereto;
(including in circumstances where such requirement may be satisfied pursuant e) upon the occurrence of a material change, it shall, to Rule 172 the satisfaction of the Sponsor, promptly comply with all applicable filing and other requirements under the Securities Act)Law as a result of such material change;
(f) the Securities, when issued, will have the Issuer will, at its expense, amend or supplement attributes described in the Pricing Package or the Final Prospectus by either Prospectus; and
(Ag) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay deliver or cause to be paid delivered all expenses documents, including legal opinions, required hereunder and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actionsProspectus.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) : The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) . The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) . The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) . If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Transition Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(v) . The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) . The Issuer or SCE AEP Texas will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC PUCT advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE AEP Texas (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) . During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) . To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) . For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) . The Issuer and SCE AEP Texas will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE AEP Texas and the Issuer.
(xi) . So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC PUCT pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine annual, semi-annual or non-routine more frequent True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) . So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (AEP Texas Restoration Funding LLC)
Covenants of the Issuer. The Issuer hereby covenants and agrees with that for so long as any of the several Underwriters thatNotes shall remain Outstanding:
(ia) The Issuer it will upon request promptly deliver duly and punctually pay the principal of and any interest on the Notes in accordance with the terms hereof;
(b) it will do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charters and statutory) and franchises;
(c) it will cause all material properties used or useful in the Representatives conduct of its business to be maintained and Counsel kept in good condition, repair and working order and supplied with all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the Underwriters a conformed copy of the Registration Statement, certified by an officer reasonable judgment of the Issuer may be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times; provided, however, that the foregoing shall not prevent the Issuer from discontinuing the operation or maintenance of any such properties if such discontinuance is, in the reasonable judgment of the Issuer, desirable in the conduct of its business or the business of any of its subsidiaries, and not disadvantageous in any material respect to the holders of Notes; and, provided, further, that the failure to comply herewith shall not be deemed a breach or Event of Default (as hereinafter defined) hereof unless such failure would have a material adverse effect on the business, financial condition or results of operations of the Issuer and its subsidiaries, taken as a whole (a "Material Adverse Effect");
(d) it will pay or discharge or cause to be in paid or discharged, before the form as originally filed same shall become delinquent, (i) all taxes, assessments and all amendments thereto.
governmental charges levied or imposed upon the Issuer or upon the income, profits or property of the Issuer, and (ii) The Issuer will deliver to all lawful claims for labor, materials and supplies which, if unpaid, might by law become a lien upon the Underwriters, as soon as practicable after the date hereof, as many copies property of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order andIssuer; provided, if issuedhowever, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company pay or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings; and, provided, further, that the failure to comply herewith shall not be deemed a breach or Event of Default if it would not have a Material Adverse Effect;
(e) it will furnish to each Registered Holder of Notes a copy of all expenses and taxes (except transfer taxes) in connection with (i) documents it is required to send to its shareholders at the preparation and filing by it of time the Registration Statementsame are sent to shareholders, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees annual reports and disbursements proxy statements;
(f) as soon as it becomes aware of Counsel the same, it will give written notice to each Registered Holder of Notes of any event or occurrence which by itself or with notice or lapse of time or both would entitle the holders of the Notes to declare the principal of and any interest on the Notes immediately due and payable pursuant to Section 15 hereof, and it will give written notice to each Registered Holder of Notes and to the Collateral Agent (as defined below) immediately upon the occurrence of a Probiotics Sale or the Release of Liens (each as defined below);
(g) it will promptly obtain and maintain from time to time all authorizations, permits, approvals, consents, licenses and exemptions which are required under any applicable law or regulation to enable it to perform all of its payment, conversion and other material obligations under the Notes or which may be required for the Underwriters validity or enforceability of the Notes; provided, however, that the failure to obtain and maintain such authorizations, permits, approvals, consents, licenses and exemptions as to material obligations other than payment and conversion shall not constitute a breach or Event of Default unless such non-compliance materially adversely affects the Issuer's ability to comply with its obligations under the Notes;
(h) it will duly and punctually comply with and observe all statutes now or hereafter in force and all trusteeordinances, rating agency regulations and CPUC advisor fees)by-laws thereunder and all requirements and orders of any government or other public authority, provided, however, that the failure to comply herewith shall not be deemed a breach or Event of Default if it would not have a Material Adverse Effect;
(iiii) subject to reasonable limitations as may be imposed by the qualification Issuer, it will permit any representative of any Registered Holder or Holders of at least $250,000 aggregate principal amount of the Bonds under blue-sky laws (including counsel fees not Notes to exceed $15,000)make, (iv) the printing during normal business hours and delivery to the Underwriters of after reasonable quantities notice, inspections of the Registration Statement andproperty of, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder business operations being carried out of an Underwriter default), 9, 10 or 12 hereofby, the Issuer or SCE any of its subsidiaries;
(ij) it will reimburse maintain and keep in force with reputable insurers and in adequate amounts, property, casualty, third party liability, business interruption and all such other insurances as would prudently be effected and maintained in the Underwriters case of a company carrying on a business similar to that of the Issuer;
(k) it will authorize and reserve a sufficient number of shares of Common Stock to provide for conversion of the Notes into shares of Common Stock;
(l) it will not incur any additional indebtedness which is senior in priority to the Notes unless such indebtedness is to a financial institution and is secured by all or substantially all of the Issuer's assets and properties;
(m) in the event of a Probiotics Sale (as defined below), it will repay in full the amounts it owes to lenders that, as of the Original Issue Date, have a security interest in the Issuer's assets; and
(n) simultaneously with the release of the liens on the Issuer's assets existing as of the Original Issue Date ("Release of Liens"), either in connection with the sale or other disposition of all or substantially all of the business described in the Memorandum as the Issuer's probiotics business or the assets relating thereto (a "Probiotics Sale") or earlier for any other reason, the Company shall grant to Taglich Brothers, Inc. or its designee (the "Collateral Agent"), as agent for the reasonable fees and disbursements of Counsel for the UnderwritersRegistered Holders, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expensesa first priority security interest, such out-of-pocket expenses in an aggregate amount not exceeding $200,000which security interest shall be fully perfected, incurred in contemplation on all of the performance of this Underwriting Agreement. The Issuer shall not intellectual property in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, which the Issuer will notholds any rights or interests, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, all trademarks, trade names, service marks, designs, styles, copyrights, patents and derivative works, applications, registrations, recordings and goodwill relating to any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereofforegoing.
Appears in 1 contract
Samples: Note Agreement (Scolr Inc)
Covenants of the Issuer. The Issuer covenants with [each] [the] Purchaser [and agrees with the several Underwriters thatInvestment Manager] as follows:
(ia) The Issuer will upon request promptly deliver to Whether or not the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be transactions contemplated in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause this Agreement are consummated or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issuedthis Agreement is terminated, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with incident to the performance of its obligations under this Agreement, including: (i) the preparation fees, disbursements and filing by it expenses of the Registration Statement, Pricing Prospectus Issuer’s counsel and Final Prospectus (including any amendments the Issuer’s accountants in connection with the issuance and supplements thereto) and any Issuer Free Writing Prospectusessale of the Notes, (ii) the fees, disbursements and reasonable expenses of [counsel of the Investment Manager and the Purchasers] [one outside legal counsel acting for the Purchaser and the Other Purchasers], (iii) all costs and expenses related to the transfer and delivery of the Notes to the [Purchasers] [Purchaser], including any transfer or other taxes payable thereon, (iv) the costs and charges of the Trustee, the paying agent and any transfer agent, registrar or depositary, (v) the cost of the preparation, issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the UnderwritersNotes, and (iivi) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket all other cost and expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of incident to the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any the obligations of the several Underwriters Issuer hereunder for damages on account of loss of anticipated profitswhich provision is not otherwise made in this Section.
(viib) Neither the Issuer nor any “affiliate” (as defined in Rule 144 (“Affiliate”)) will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that could be integrated with the sale of the Notes in a manner that would require the registration under the Securities Act of the Notes .
(c) Not to solicit any offer to buy or offer or sell the Notes by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act.
(e) During the period from the date of this Underwriting Agreement to the date that is five days one year after the Closing Date, Date the Issuer will not, without the prior written consent and will not permit any of its Affiliates to resell any of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, Notes which constitute “restricted securities” under Rule 144 that have been reacquired by any asset-backed securities (other than the Bonds)of them.
(viiif) To apply the extentnet proceeds from the sale of the Notes to repay the Issuer’s existing indebtedness, if anyfund the cash portion of the Issuer’s acquisition of the Target Companies, that infuse capital into one or more of the Target Companies, and/or for other general corporate purposes.
(h) Upon the occurrence and during the continuance of (i) a dispute evidenced in writing between the Issuer and any rating necessary Purchaser, (ii) a Default or (iii) an Event of Default (as both such terms are defined in the Indenture), the Issuer and each subsidiary, shall make available to satisfy such Purchaser, at the condition set forth in Section 9(bbIssuer’s relevant facilities during normal business hours, upon reasonable written notice by such Purchaser, its books and records and the books and records of any of its subsidiaries. [
(i) On the Closing Date and at all times thereafter, the terms and provisions of this Underwriting Agreement is conditioned upon shall be no less favorable to the furnishing Purchaser than the terms and provisions of documents or any Other Purchase Agreement are to the taking applicable Other Purchaser.] 6. Representations and Warranties of other actions by the Issuer on or after [Purchasers] [Purchaser]. [Each] [The] Purchaser hereby[, severally and not jointly,] represents and warrants to the Issuer, as of the date hereof and as of the Closing Date, the Issuer shall furnish that: (a) Such Purchaser is a corporation, limited liability company or partnership (and where such documents and take such other actions.
(ix) For partnership is not a period separate legal entity from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs firstpartners thereof, the Issuer shall file with the Commissiongeneral or managing partner thereof), duly organized, validly existing and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered good standing under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuerlaws of its jurisdiction of organization.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Covenants of the Issuer. The In further consideration of your agreements contained in this Agreement, the Issuer covenants and agrees with the several Underwriters thatas follows:
(ia) The Issuer will upon request promptly deliver furnish to you in New York City, without charge, prior to 5:00 p.m. New York City time on the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after business day next succeeding the date hereofof this Agreement and during the period mentioned in paragraph (c) below, as many copies of the Pricing Prospectus Offering Memorandum and Final Prospectus any supplements and amendments thereto as they you may reasonably request.
(iiib) The Before amending or supplementing the Offering Memorandum, the Issuer will cause furnish you a copy of each such proposed amendment or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable supplement and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will not use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, proposed amendment or supplement to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bondswhich you reasonably object.
(ivc) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with first date of the Commission pursuant offering of the Debentures and prior to Rule 424 under the Securities Act as in completion of the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act)sale thereof, any event relating to or affecting the Issuer, the Bonds or the Recovery Property or shall occur as a result of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered necessary in your judgment to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary Offering Memorandum in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus such Offering Memorandum is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act)purchaser, not misleading; provided that should such event relate solely , or if it is necessary to amend or supplement the Offering Memorandum to comply with applicable law, the Issuer will forthwith prepare and furnish to you, at its own expense, either amendments or supplements to the activities of any Offering Memorandum so that the statements in the Offering Memorandum as so amended or supplemented will not, in the light of the Underwriterscircumstances when the Offering Memorandum is delivered to a purchaser, then such Underwriters shall assume be misleading or so that the expense of preparing and furnishing any such amendment Offering Memorandum, as so amended or supplement. The Issuer supplemented, will also fulfill its obligations set out in Section 3(d) abovecomply with applicable law.
(vd) The Issuer will furnish such proper information as may be lawfully required endeavor to qualify the Debentures and otherwise cooperate in qualifying the Bonds Shares for offer and sale under the blue-sky securities or Blue Sky laws of the states of the United States such jurisdictions as the Representatives may designate; provided that the Issuer you shall not be required to qualify reasonably request and maintain such qualifications for as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensomelong as you shall reasonably request.
(vie) The Issuer or SCE will, except as herein providedwhether or not any sale of the Debentures is consummated, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with incident to the performance of its obligations under this Agreement, including: (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus Offering Memorandum and Final Prospectus (including any all amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the preparation, issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees Debentures and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees)Shares, (iii) the fees and disbursements of the Issuer's counsel, its accountants and of the Trustee and its counsel, (iv) the qualification of the Bonds Debentures and the Shares under blue-sky securities or Blue Sky laws (including counsel fees not to exceed $15,000in accordance with the provisions of Section 4(d), including filing fees and the fees and disbursements of your counsel in connection therewith and in connection with the preparation of any Blue Sky or legal investment memoranda, (ivv) any fees charged by rating agencies for the rating of the Debentures, (vi) the printing and delivery to the Underwriters you in quantities as hereinabove stated of reasonable quantities copies of the Registration Statement andOffering Memorandum and any amendments or supplements thereto, except as provided in Section 8(a)(iv(vii) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000if any, incurred in contemplation connection with the admission of the performance of this Underwriting Agreement. The Issuer shall not Debentures and Shares for trading in any event be liable to appropriate market system and (viii) any stamp or value added taxes payable in connection with the sale of the several Underwriters for damages on account of loss of anticipated profitsDebentures to you.
(viif) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing DateWithout your prior written consent, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, offer, sell, contract to sell or announce the offering of, otherwise dispose of any asset-backed shares of its Preferred Stock or Common Stock or any securities (other than the Bonds).
(viii) To the extent, if any, that convertible into or exercisable or exchangeable for its Preferred Stock or Common Stock or any rating necessary rights to satisfy the condition set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents acquire Preferred Stock or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For Common Stock for a period from of 90 days after the date of this Underwriting Agreement until Agreement, other than (i) the retirement Debentures to be sold hereunder, (ii) any shares of such Common Stock sold upon the conversion of the Bonds Debentures or until any other debentures outstanding on the date hereof, (iii) any shares of such time Common Stock sold upon the exercise of an option granted under the Issuer's existing stock option or issued under the Issuer's restricted stock purchase plans, (iv) any shares of Common Stock issued in connection with earn-out payments,(v) shares of Common Stock issued but not freely tradeable prior to the end of the 90 day period, and (vi) up to 1,200,000 shares of Common Stock to be issued in connection with acquisitions.
(g) Not to solicit any offer to buy or offer or sell the Debentures by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Underwriters shall cease Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(h) Neither the Issuer nor any person acting on behalf of the Issuer will engage in any directed selling efforts with respect to maintain a secondary market in the BondsDebentures within the meaning of Regulation S, whichever occurs firstand the Issuer and each such person acting on behalf of the Issuer (other than you) has complied and will comply with the offering restrictions requirement of Regulation S.
(i) During the two year period following the Closing Date (or, if later, the Option Closing Date) and during the two year period following the sale of any Debenture by an affiliate of the Issuer, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reportsshall, if any, as are required (without regard it is not then subject to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as Act make available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy to any seller of any filings with the CPUC pursuant to Debentures or Shares the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer specified in Rule 144A(d)(4) under the Securities Act (so long as such requirement is necessary in order to permit holders of the Representatives may reasonably requestDebentures or Shares to effect resales under Rule 144A).
(xiij) So long as the Bonds are rated by any Rating Agency, the The Issuer will comply not resell any of the Debentures.
(k) The Issuer shall use its best efforts to permit the Debentures to be designated PORTAL securities in accordance with the 17g-5 Representationsrules and regulations adopted by the National Association of Securities Dealers, other than (x) any noncompliance of Inc. relating to trading in the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereofPORTAL Market.
Appears in 1 contract
Covenants of the Issuer. 9.1 The Issuer hereby covenants with each Subscriber that it will:
(a) offer, sell, issue and agrees deliver the Units pursuant to exemptions from the prospectus filing, registration or qualification requirements of Applicable Securities Laws and otherwise fulfil all legal requirements required to be fulfilled by the Issuer (including without limitation, compliance with all Applicable Securities Laws in connection with the several Underwriters Offering;
(b) within the required time, file with the Exchange any documents, reports and information, in the required form, required to be filed by Applicable Securities Laws in connection with the Offering, together with any applicable filing fees and other materials;
(c) the Issuer will use reasonable commercial efforts to satisfy as expeditiously as possible any conditions of the Exchange required to be satisfied prior to the Exchange’s acceptance of the Issuer’s notice of the Offering; and
(d) use its reasonable commercial efforts to obtain all necessary approvals for this Offering.
(e) The Issuer shall take all necessary actions to recommend to its directors and its shareholders that the Subscriber’s Nominee be appointed or elected, as the case may be, to the Board at each meeting of directors called for the purposes of appointing directors or each meeting of shareholders of the Issuer at which directors are to be elected and at such other times as may be required by the Subscriber (the “Nomination Right”).
(f) The Issuer shall take such other reasonable action necessary or advisable to facilitate the appointment to and continuing membership on the Board of the Subscriber’s Nominee.
(g) In the event of any vacancy on the Board created by the removal or resignation of the Subscriber’s Nominee as a result of such nominee’s failure to satisfy the applicable Securities Laws and/or Exchange requirements, such vacancy shall be filled with a new Subscriber’s Nominee, provided that such new nominee satisfies such Securities Laws and TSX requirements.
(h) Notwithstanding any provision in this Agreement, the Nomination Right provided in Section 9.1(e) shall expire and be of no force or effect upon the Subscriber holding less than one million Shares.
9.2 Pre-emptive Right
(a) The Issuer grants to the Subscriber a right to purchase any authorized but unissued Shares (“New Shares”) that the Issuer may from time to time propose to issue or sell to any person in an amount such that following the subscription by the Subscriber, the Subscriber is able to maintain its pro rata share of the Issuer based on the percentage of the outstanding Shares owned by the Subscriber immediately prior to the proposed issuance or sale (the “Pro Rata Portion”).
(b) The Issuer shall give written notice (an “Issuance Notice”) of any proposed issuance or sale of New Shares to the Subscriber within five Business Days following any meeting of the board of directors of the Issuer at which any such issuance or sale is approved.
(c) The Issuance Notice shall set forth the material terms and conditions of the proposed issuance or sale, including: (i) the number and description of New Shares proposed to be issued; (ii) the proposed issuance date, which shall be at least 20 Business Days from the date of the Issuance Notice; and (iii) the proposed purchase price per share of New Shares and all other material terms of the offer or sale.
(d) The Subscriber shall, for a period of 10 Business Days following the receipt of an Issuance Notice (the “Pre-Emptive Exercise Period”), have the right to elect irrevocably to purchase for cash all or any portion of the Pro Rata Portion of any New Shares on the terms and conditions, including the purchase price, set forth in the Issuance Notice by delivering a written notice to the Issuer (a “Pre-Emptive Acceptance Notice”) specifying the number of New Shares that the Subscriber desires to purchase up to the Pro Rata Portion.
(e) The delivery of a Pre-Emptive Acceptance Notice by the Subscriber shall be a binding and irrevocable offer by the Subscriber to purchase the New Shares described therein. The failure of the Subscriber to deliver a Pre-Emptive Acceptance Notice by the end of the Pre-Emptive Exercise Period shall constitute a waiver of the Subscriber’s rights with respect to the purchase of such New Shares but shall not affect the Subscriber’s rights with respect to any other future issuances or sales of New Shares.
(f) Following the expiration of the Pre-Emptive Exercise Period, the Issuer shall be free to complete the proposed issuance or sale of New Shares described in the Issuance Notice with respect to which the Subscriber waives or fails to exercise the pre-emptive right set forth in this Agreement on terms no less favourable to the Issuer than those set forth in the Issuance Notice; provided that: (i) such issuance or sale shall be closed within 20 Business Days after the expiration of the Pre-Emptive Exercise Period; and (ii) for the avoidance of doubt, the price at which the New Shares are sold to any prospective third party purchaser seeking to purchase the applicable New Shares (a “Prospective Purchaser”) shall be at least equal to or higher than the purchase price described in the Issuance Notice.
(g) If the Issuer has not sold such New Shares within such time period, the Issuer shall not thereafter issue or sell any New Shares without first again offering such shares to the Subscriber in accordance with the procedures set forth in this Subscription Agreement.
(h) The closing of any purchase by any Prospective Purchaser shall be consummated concurrently with the consummation of the issuance or sale described in the Issuance Notice. Upon the issuance or sale of any New Shares in accordance with this Subscription Agreement, the Issuer shall deliver certificates representing the New Shares, free and clear of any mortgage, lien, charge, hypothec or encumbrance, whether fixed or floating, on, or any security interest in, any property, whether real, personal or mixed, tangible or intangible, any pledge or hypothecation thereof, any deposit arrangement, priority, conditional sale agreement, other title retention agreement, capital lease or other security arrangement of any kind and, in respect of any securities, includes an adverse claim (other than those arising hereunder and those attributable to the actions of the purchasers thereof), and the Issuer shall so represent and warrant to the purchasers thereof, and further represents and warrants to such purchasers that such New Shares shall be, upon issuance thereof to such purchasers and after payment therefor, duly authorized, validly issued, fully paid and non-assessable. The Subscriber shall deliver to the Issuer the purchase price for the New Shares purchased by the Subscriber by certified cheque, bank draft or wire transfer of immediately available funds or in such other medium and manner as agreed between the Issuer and the Subscriber. Each party to the purchase and sale of New Shares shall take all such other actions as may be reasonably necessary to consummate the purchase and sale, including entering into such additional agreements as may be necessary or appropriate.
(i) Notwithstanding the foregoing, the pre-emptive right provided to the Subscriber in this subsection 9.2 shall not apply in the event of an issuance of Shares in connection with:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, incentive securities to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission purchase or otherwise acquire Shares pursuant to Rule 424 under an equity incentive plan or employment agreement and the Securities Act as in issuance of Shares on the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter exercise, conversion or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.settlement thereof;
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of any Shares upon the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements exercise or conversion of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees), any securities currently outstanding;
(iii) the qualification issuance of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000)Shares in a share dividend, (iv) the printing and delivery to the Underwriters capital reorganization or similar transaction where all holders of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses Shares are treated in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profitsequivalent manner.
(viij) During the period from the date of Notwithstanding any provision in this Underwriting Agreement to the date that is five days after the Closing DateAgreement, the Issuer will not, without the prior written consent pre-emptive right provided in this Section 9.2 shall expire and be of the Representatives, offer, sell no force or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb) of this Underwriting Agreement is conditioned effect upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actionsSubscriber holding less than one million Shares.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Samples: Subscription Agreement
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver use its best efforts to the Representatives and Counsel to the Underwriters a conformed copy of cause the Registration Statement, certified by an officer if not effective at the Execution Time, and any amendment thereto, to become effective. Prior to the termination of the Issuer to be in offering of the form as originally filed and all amendments thereto.
(ii) The Bonds, the Issuer will deliver not file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the UnderwritersBasic Prospectus unless the Issuer has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus Prospectus, properly completed in a form approved by you, and any supplement thereto to be filed with the Commission SEC pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Issuer will promptly advise the Representative (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective, (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the SEC pursuant to Rule 424 under 424(b), (iii) when, prior to termination of the Securities Act as soon as practicable and will advise offering of the Underwriters Bonds, any amendment to the Registration Statement shall have been filed or become effective, (iv) of any request by the SEC for any amendment of the Registration Statement or supplement to the Final Prospectus or for any additional information, (v) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding therefor for that purpose and (vi) of which the receipt by the Issuer shall have received noticeof any notification with respect to the suspension of the qualification of the Bonds for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(ivii) If, during such period of at any time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters when a prospectus covering relating to the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or occurs as a result of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as then supplemented or amended, it will not contain would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances when under which they were made not misleading, or if it shall be necessary to amend the Pricing Package Registration Statement or supplement the Final Prospectus is delivered to a purchaser comply with the Act or the Exchange Act or the respective rules thereunder, the Issuer promptly will (including i) prepare and file with the SEC, subject to the second sentence of paragraph (a)(i) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (ii) supply any supplemented Prospectus to you in circumstances where such requirement quantities as you may be satisfied pursuant reasonably request.
(iii) As soon as practicable, the Issuer will use its reasonable efforts to cause the Trust to make generally available to the holders of the Bonds and the Representative an earnings statement or statements of the Issuer which will satisfy the provisions of Section 11(a) of the Act and Rule 172 158 under the Securities Act), not misleading; provided that should such event relate solely .
(iv) The Issuer will furnish to the activities of any of Representative and counsel for the Underwriters, then such Underwriters without charge, copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of any Preliminary Final Prospectus and the Final Prospectus and any supplement thereto as the Representative may reasonably request. The Issuer shall assume furnish or cause to be furnished to the expense Representative copies of preparing and furnishing any such amendment or supplementall reports required by Rule 463 under the Act. The Issuer will also fulfill its obligations set out in Section 3(d) abovepay the expenses of printing or other production of all documents relating to the offering.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying arrange for the qualification of the Bonds for offer and sale under the blue-sky laws of such jurisdictions as the states Representative may designate, will maintain such qualifications in effect so long as required for the distribution of the United States as Bonds or requested by the Representatives may designateRepresentative and will arrange for the determination of the legality of the Bonds for purchase by institutional investors; provided PROVIDED, HOWEVER, that in no event shall the Issuer shall not be required obligated to qualify as a foreign limited liability company to do business in any jurisdiction where it is not now so qualified or dealer in securities, to file take any consents action that would subject it to service of process under in suits, other than those arising out of the laws offering or sale of the Bonds, in any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensomejurisdiction where it is not now so subject.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five Until 90 days after the Closing Datedate hereof, the Issuer will not, without the prior written consent of the RepresentativesRepresentative, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities of a trust or other special purpose vehicle (other than the Bonds).
(vii) For a period from the date of this Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer will deliver to the Representative the annual statements of compliance and the annual independent auditor's servicing reports furnished to the Issuer or the Trustee pursuant to the Servicing Agreement or the Indenture, as applicable, as soon as such statements and reports are furnished to the Issuer or the Trustee.
(viii) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representative (i) as soon as available, a copy of each report of the Issuer filed with the SEC under the Exchange Act, or mailed to holders of the Bonds, (ii) a copy of any filings with the New Hampshire Public Utilities Commission ("NHPUC") pursuant to the Finance Order, including, but not limited to, any annual or more frequent adjustment filings, and (iii) from time to time, any information concerning the Company or the Issuer, as the Representative may reasonably request.
(ix) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb6(l) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Covenants of the Issuer. 8.1 The Issuer hereby covenants and agrees with the several Underwriters thatSubscriber that it:
(ia) The Issuer will upon request promptly offer, sell, issue and deliver the Securities pursuant to exemptions from the Representatives prospectus filing, registration or qualification requirements of Applicable Securities Laws and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer otherwise fulfill all legal requirements required to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed fulfilled by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, compliance with all Applicable Securities Laws) in connection with the Offering subject to the terms and conditions of this Subscription Agreement;
(b) will use commercially reasonable efforts to maintain its status as a "reporting issuer" not in default in British Columbia, Alberta, Ontario and Quebec;
(c) will within the required time file with the TSX and any securities regulatory authority any documents, reports and information, in the required form, required to be filed by Applicable Securities Laws in connection with the Offering, together with any applicable filing fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees), other materials;
(iiid) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of will use reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE commercial efforts: (i) will reimburse to satisfy as expeditiously as possible any conditions of the Underwriters for TSX required to be satisfied prior to the reasonable fees and disbursements TSX acceptance of Counsel for the UnderwritersIssuer's notice of the Offering, and (ii) will reimburse to maintain the Underwriters listing of its Common Shares on the TSX for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation so long as any Subscriber holds any of the performance Securities;
(e) will use its reasonable commercial efforts to obtain Shareholder Approval as soon as reasonably practicable, subject to the applicable requirements of this Underwriting Agreementcorporate and securities laws, and if Shareholder Approval is not obtained on or before May 31, 2005 the Issuer will instruct the Escrow Agent to promptly return the Subscription Proceeds to the Subscriber;
(f) will not provide the Subscriber or its agents or counsel with any information that the Issuer believes constitutes material non-public information, unless prior thereto the Subscriber shall have executed a written agreement regarding the confidentiality and use of such information. The Issuer understands and confirms that the Subscriber shall not be relying on the foregoing representations in any event be liable to any effecting transactions in securities of the several Underwriters for damages on account of loss of anticipated profits.Issuer;
(viig) During will file a Form D with the period from the date of this Underwriting Agreement U.S. Securities and Exchange Commission pursuant to the date that is five days after requirements of the U.S. Securities Act; and
(h) will issue a press release on the Escrow Date, announcing the final terms of the Offering, and on the Closing Date, the Issuer will not, without the prior written consent announcing completion of the RepresentativesOffering, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds)in accordance with Applicable Securities Laws.
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Samples: Subscription Agreement (Offshore Systems International LTD)
Covenants of the Issuer. The Issuer covenants and agrees for the benefit of Ambac as follows:
(a) it will comply with the several Underwriters undertakings and covenants set out in the Finance Documents to which it is a party including without limitation in Clause 4 of the Subscription Agreement as if such covenants were incorporated mutatis mutandis into this Agreement;
(b) it will forthwith notify Ambac of anything which has or may reasonably be expected to have rendered untrue or incorrect in any respect any of the representations and warranties in Clause 2.1 of this Agreement and which is material in the context of the issue and offering of the Bonds and of the transactions contemplated by the Finance Documents or the issue of the Financial Guarantee;
(c) it will provide Ambac with any information, notices, including, inter alia, management accounts (in such form as they are produced by the Issuer), audited financial statements and other financial information promptly on request after the same become available;
(d) subject to Applicable Requirements, that the duties and obligations of the Issuer herein shall continue in full force and effect until all of the obligations of all Obligors under the Finance Documents have been fully and irrevocably discharged, notwithstanding payment by the Issuer or the Guarantor of all amounts due in respect of the Bonds;
(e) that, prior to the Trustee presenting a Notice of Demand to Ambac, the Issuer will have utilised all other financial resources available to it for the purposes of paying interest and/or principal and/or any other sums due to the Bondholders of the relevant Bonds;
(f) subject to Applicable Requirements, it will, upon reasonable prior notice by Ambac make appropriate management personnel available for a meeting (whether conducted over the telephone or otherwise) with Ambac at a mutually acceptable time and place to discuss the Issuer's operational and financial performance over the preceding financial year and its financial plans for the next three years;
(g) subject to Applicable Requirements, it will, as soon as reasonably practicable after request by Ambac, provide appropriate personnel for a meeting (whether conducted over the telephone or otherwise) with Ambac at a mutually acceptable time and place if there occurs a significant change in the financial position of the Issuer or any Subsidiary which is material to the Issuer as shown in its most recent financial statements or in any report produced by OFGEM concerning the Issuer or any of its Subsidiaries;
(h) in consideration for Ambac's issuance of the Financial Guarantee, it will, on the terms and subject to the conditions of this Agreement:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) procure the preparation and filing by it of the Registration Statementpayment, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, of any information concerning Guarantee Fees due and payable to Ambac in accordance with the Issuer as the Representatives may reasonably request.Guarantee Fee Letter and this Agreement;
(xiiii) So long as promptly pay to Ambac, all and any sums and fees due and payable to Ambac under the Bonds are rated Finance Documents including, for the avoidance of doubt, (if applicable) the amount equal to the loss, liability or cost which Ambac determines will be or has been (directly or indirectly) suffered for or on account of any Tax by Ambac (except any Rating AgencyTax by reference to the net income received or receivable by Ambac) or in respect of, or applicable to, the Issuer payment of such sums and fees, as provided for in the Finance Documents;
(iii) indemnify and reimburse Ambac on the terms of this Agreement;
(i) it will comply with the 17g-5 Representations, not carry on or engage in any business or activity other than acting as a finance vehicle for the purposes of borrowing money or raising Financial Indebtedness (xas defined in the terms and conditions at the Bonds) and/or lending to affiliated companies and/or holding cash deposits or other investment; and
(j) it will not enter into any noncompliance agreement or transaction constituting a currency or interest rate swap, cap or collar arrangement, forward exchange transaction, option, warrant, forward rate agreement, futures contract or other derivative instrument of any kind for the 17g-5 Representations that would not have a material adverse effect on the rating hedging or management of the Bonds foreign exchange or the Bonds interest rate risks or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereofother inflation rate risks or similar derivative instruments.
Appears in 1 contract
Samples: Reimbursement and Indemnity Agreement (Midamerican Energy Holdings Co /New/)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed filed, including all Incorporated Documents and exhibits and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery CRR Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d3(e) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE APCo will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC WVPSC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE APCo (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-of pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb9(w) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE APCo will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx & Xxxxxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE APCo and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC WVPSC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine annual, semi-annual or non-routine more frequent True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Appalachian Consumer Rate Relief Funding LLC)
Covenants of the Issuer. The Issuer hereby covenants and agrees with that for so long as any of the several Underwriters thatDebentures shall remain Outstanding:
(a) it shall use its best efforts to gain shareholder approval of its proposal to increase the number of authorized shares of Common Stock from 25,000,000 shares to 50,000,000 shares at its upcoming special meeting of shareholders, scheduled for January 26, 2001 and which shall occur no later than July 2, 2001;
(b) at all times after its upcoming special meeting of shareholders, assuming the foregoing shareholder proposal is approved and following the filing of the amendment to its articles of incorporation, it shall have authorized and reserved a sufficient number of shares of Common Stock to provide for the conversion of the Debentures into shares of Common Stock;
(c) it will duly and punctually pay the principal of and any interest on the Debentures in accordance with the terms hereof;
(d) it will do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charters and statutory) and franchises;
(e) it will cause all material properties used or useful in the conduct of its business to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the reasonable judgment of Issuer may be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times; PROVIDED, HOWEVER, that the foregoing shall not prevent the Issuer from discontinuing the operation or maintenance of any such properties if such discontinuance is, in the reasonable judgment of Issuer, desirable in the conduct of its business or the business of any of its subsidiaries, and not disadvantageous in any material respect to the holders of Debentures; and, PROVIDED, FURTHER, that the failure to comply herewith shall not be deemed a breach hereof unless such failure would have a Material Adverse Effect;
(f) it will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (i) The all taxes, assessments and governmental charges levied or imposed upon the Issuer will or upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy income, profits or property of the Registration StatementIssuer, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to all lawful claims for labor, materials and supplies which, if unpaid, might by law become a lien upon the Underwriters, as soon as practicable after the date hereof, as many copies property of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order andIssuer; PROVIDED, if issuedHOWEVER, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company pay or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings; and, PROVIDED, FURTHER, that the failure to comply herewith shall not be deemed a breach if it would not have a Material Adverse Effect;
(g) it shall furnish to each Registered Holder of Debentures a copy of all expenses and taxes (except transfer taxes) in connection with (i) documents it is required to send to its shareholders at the preparation and filing by it of time the Registration Statementsame are sent to shareholders, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees annual reports and disbursements proxy statements;
(h) as soon as it becomes aware of Counsel the same, it shall give written notice to each Registered Holder of Debentures of any event or occurrence which by itself or with notice or lapse of time or both would entitle the holders of the Debentures to declare the principal of and any interest on the Debentures immediately due and payable pursuant to Section 14 hereof;
(i) it will promptly obtain and maintain from time to time all authorizations, permits, approvals, consents, licenses and exemptions which are required under any applicable law or regulation to enable it to perform all of its payment, conversion and other material obligations under the Debentures or which may be required for the Underwriters validity or enforceability of the Debentures; provided, however, that the failure to obtain and maintain such authorizations, permits, approvals, consents, licenses and exemptions as to material obligations other than payment and conversion shall not constitute a breach of this provision unless such non-compliance materially adversely affects the Issuer's ability to comply with its obligations under the Debentures;
(j) it will duly and punctually comply with and observe all statutes now or hereafter in force and all trusteeordinances, rating agency regulation and CPUC advisor feesby-laws thereunder and all requirements and orders of any government or other public authority; PROVIDED, HOWEVER, that any non-compliance with any such statute, ordinance, regulation or by-law shall not constitute a breach of this provision unless such non-compliance materially adversely affects the Issuer's ability to comply with its obligations under the Debentures;
(k) it shall permit any representative of any Registered Holder or Holders of at least $75,000 aggregate principal amount of the Debentures to make inspections of (during regular business hours and subject to reasonable confidentiality restrictions), (iii) and to report on, the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000)property of, (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder business operations being carried out of an Underwriter default), 9, 10 or 12 hereofby, the Issuer or SCE any of its subsidiaries;
(l) it shall maintain and keep in force with reputable insurers and in adequate amounts, property, casualty, third party liability and all such other insurances as would prudently be effected and maintained in the case of a company carrying on a business similar to that of the Issuer;
(m) it shall not:
(i) will reimburse declare or pay any cash dividends on its Common Stock (unless the Underwriters Company provides the holders of the Debentures written notice of at least thirty (30) days prior to the record date for the reasonable fees and disbursements cash dividend, that the Company intends to declare a cash dividend) or purchase, redeem or otherwise acquire or retire for value any shares of Counsel for Common Stock (other than under the Underwriters, and terms of the Issuer's stock option plan); or
(ii) will reimburse the Underwriters for their reasonable out-of-pocket expensesconsolidate with or merge into any other Person, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, where the Issuer will notis not the surviving corporation, without the prior written consent of the Representativesor convey, offertransfer, sell or contract to sell, lease or otherwise dispose ofof all or substantially all of its assets, directly or indirectly, or announce except in compliance with the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition terms and conditions set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions11 below.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver use its best efforts to the Representatives and Counsel to the Underwriters a conformed copy of cause the Registration Statement, certified by an officer if not effective at the Execution Time, and any amendment thereto, to become effective. Prior to the termination of the Issuer to be in offering of the form as originally filed and all amendments thereto.
(ii) The Bonds, the Issuer will deliver not file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the UnderwritersBasic Prospectus unless the Issuer has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus Prospectus, properly completed, and any supplement thereto to be filed with the Commission SEC pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Issuer will promptly advise the Representative (A) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective, (B) when the Final Prospectus, and any supplement thereto, shall have been filed with the SEC pursuant to Rule 424 under 424(b), (C) when any amendment to the Securities Act as soon as practicable and will advise Registration Statement shall have been filed or become effective, (D) of any request by the Underwriters SEC for any amendment of the Registration Statement or supplement to the Final Prospectus or for any additional information, (E) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding therefor for that purpose, (F) of which the receipt by the Issuer shall have received noticeof any notification with respect to the suspension of the qualification of the Bonds for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and (G) of the happening of any event during the period mentioned in subparagraph (ii) below. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(ivii) If, during such period of If at any time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters when a prospectus covering relating to the Bonds is required by law to be delivered under the Act in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act)dealer, any event relating to or affecting the Issuer, the Bonds or the Recovery Property or occurs as a result of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package as then amended or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or supplemented would include an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact fact, or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Package Registration Statement or supplement the Final Prospectus is delivered to a purchaser (including comply with the Act in circumstances where connection with sales by an Underwriter or dealer, the Issuer agrees to advise you of such requirement event or necessity, as the case may be satisfied pursuant be, and, promptly upon request made by you, to Rule 172 under prepare and file with the Securities Act)Commission an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance, not misleading; provided that should the expense of preparing and filing any such event relate amendment or supplement (A) which is necessary in connection with such a delivery of a prospectus more than nine months after the date of this Underwriting Agreement or (B) which relates solely to the activities of any Underwriter shall be borne by the Underwriter or Underwriters or the dealer or dealers requiring the same; and provided further that you shall, upon inquiry by the Company, advise the Company whether or not any Underwriter or dealer which shall have been selected by you retains any unsold Bonds and, for the purposes of this subsection (ii), the Company shall be entitled to assume that the distribution of the Bonds has been completed when it is advised by you that no Underwriter or such dealer retains any Bonds.
(iii) As soon as practicable, the Issuer will make generally available to the Bondholders and to the Representative an earnings statement or statements of the Issuer which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(iv) The Issuer will furnish to the Representative and counsel for the Underwriters, then such Underwriters shall assume without charge, copies of the expense Registration Statement (including exhibits thereto) and, so long as delivery of preparing a prospectus by an Underwriter or dealer may be required by the Act, as many copies of any Preliminary Final Prospectus and furnishing the Final Prospectus and any such amendment or supplementsupplement thereto as the Representative may reasonably request. The Issuer will also fulfill its obligations set out in Section 3(d) abovepay the expenses of printing or other production of all documents relating to the offering.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying arrange for the qualification of the Bonds for offer and sale under the blue-sky laws of such jurisdictions as the states Representative may designate, will maintain such qualifications in effect so long as required for the distribution of the United States as Bonds and will arrange for the Representatives may designatedetermination of the legality of the Bonds for purchase by institutional investors; provided that in no event shall the Issuer shall not be required obligated to qualify as a foreign limited liability company to do business in any jurisdiction where it is not now so qualified or dealer in securities, to file take any consents action that would subject it to service of process under in suits, other than those arising out of the laws offering or sale of the Bonds, in any jurisdiction, jurisdiction where it is not now so subject or meet any other requirements requirement in connection with this clause (v) deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) Until the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages business date set forth on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing DateSchedule I hereto, the Issuer will not, without the prior written consent of the RepresentativesRepresentative, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-asset- backed securities (other than the Bonds).
(vii) For a period from the date of this Underwriting Agreement until the retirement of the Bonds, or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer will deliver to the Representative the annual statements of compliance and the annual independent auditor's servicing reports furnished to the Issuer or the Trustee pursuant to the Servicing Agreement or the Indenture, as applicable, as soon as such statements and reports are furnished to the Issuer or the Trustee.
(viii) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representative (A) as soon as available, a copy of each report of the Issuer filed with the SEC under the Exchange Act, or mailed to Bondholders, (B) a copy of any filings with the Pennsylvania Public Utility Commission pursuant to the QRO including, but not limited to, any annual or more frequent adjustment filings, and (C) from time to time, any information concerning the Company or the Issuer as the Representative may reasonably request.
(ix) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb7(l) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ixx) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the The Issuer shall will file with the CommissionCommission a report on Form 8-K setting forth all Computational Materials and ABS Term Sheets (as such terms are defined in Section 6) provided to the Issuer by any Underwriter and identified by it as such within the time period allotted for such filing pursuant to the No-Action Letters (as defined in Section 6); provided, however, that prior to any filing of the Computational Materials and ABS Term Sheets by the Issuer, such Underwriter must comply with its obligations pursuant to Section 6 and the Issuer must receive a letter from PricewaterhouseCoopers LLP, certified public accountants, satisfactory in form and substance to the Issuer and such Underwriter, to the effect that such accountants have performed specified procedures, all of which have been agreed to by the Issuer and such Underwriter, as a result of which they have determined that the information included in the Computational Materials and ABS Term Sheets (if any), provided by such Underwriter to the Issuer for filing on Form 8-K pursuant to Section 6 and this subsection (x), and which the accountants have examined in accordance with such agreed upon procedures, is accurate except as to the extent permitted such matters that are not deemed by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documentssuch Underwriter to be material. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement corrected Computational Materials or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (AABS Terms Sheets described in Section 6(a)(iv) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably requestpracticable following receipt thereof.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Pp&l Transition Bond Co Inc)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed signed copy of the Registration StatementStatement as originally filed or, to the extent a signed copy is not available, a conformed copy, certified by an officer of the Issuer to be in the form as originally filed and filed, including all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and the Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act (“Rule 424”) as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) As soon as practicable, but not later than 12 months after the date hereof, the Issuer will make generally available to its security holders, an earnings statement (which need not be audited) that will satisfy the provisions of Section 11(a) of the Securities Act with respect to the Bonds.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of such jurisdictions as the Representatives may designate; provided that neither the Issuer nor Potomac Edison shall be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer or Potomac Edison, as applicable, to be unduly burdensome.
(vi) The Issuer will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Xxx Xxxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to Potomac Edison and the Issuer.
(vii) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities ActAct (“Rule 172”)), any event relating to or affecting the Issuer, the Bonds or the Recovery Environmental Control Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or of, the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act172), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act172), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(vviii) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing ProspectusesProspectus, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC PSCWV financial advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000)laws, (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement andStatement, except as provided the Pricing Prospectus and Final Prospectus and (v) any amendment or supplement to the Registration Statement, Pricing Prospectus, or Issuer Free Writing Prospectus required to be filed with the Commission to correct any untrue statement of a material fact or omission of any statement necessary to make the statements therein, in Section 8(a)(iv) hereof, the light of the Pricing Package circumstances in which they were made, not misleading, the result of which requires the reforming of any contracts of sale of the Bonds made by the Underwriters (including any damages or other amounts payable in connection with legal and Final Prospectuscontractual liability). If the obligation of the Underwriters to purchase the Bonds terminates this Underwriting Agreement shall be terminated in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, Section 10 or 12 hereof, the Issuer shall not be required to pay any amount for any expenses of the Underwriters or SCE (i) for any fees and expenses of counsel for the PSCWV financial advisor, except that the Issuer will reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding $[ ], incurred in contemplation of the performance of this Underwriting Agreement and will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(viiix) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viiix) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb9(z) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ixxi) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commissionshall, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parentabove, such information as required by Section 3.07(g3.07(e) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g3.07(e) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(xxii) The Issuer and SCE will not file any amendment to During a period of one year from the effective date of the Registration Statement or amendment or supplement Statement, to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, Representatives (A) as soon as they are available, a copy copies of each report any reports and financial statements of the Issuer furnished to or filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent Commission, other than such reports and financial statements that are not publicly available on the Commission’s website), XXXXX system; and (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any such additional information concerning the business and financial condition of the Issuer as the Representatives may from time to time reasonably requestrequest (such financial statements to be on a consolidated basis to the extent the accounts of the Issuer are consolidated in reports furnished to its shareholders generally or to the Commission).
(xiixiii) So long [The Issuer will file with the Commission such information on Form 10-D or Form 10-K as may be required by Rule 463 under the Bonds are rated by any Rating AgencySecurities Act.]
(xiv) If the Issuer elects to rely upon Rule 462(b) under the Securities Act (“Rule 462(b)”), the Issuer will comply shall file a Rule 462(b) Registration Statement with the 17g-5 RepresentationsCommission in compliance with Rule 462(b) by 10:00 P.M., other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect Washington, D.C. time, on the rating date of this Agreement, and the Bonds Issuer shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the Bonds or (ypayment of such fee pursuant to Rule 111(b) any noncompliance arising from under the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereofSecurities Act.
Appears in 1 contract
Samples: Underwriting Agreement (PE Environmental Funding LLC)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed filed, including all Incorporated Documents and exhibits and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery CRR Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d3(e) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE APCo will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC PSCWV advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE APCo (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-of pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb9(x) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE APCo will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx & Xxxxxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE APCo and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC PSCWV pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine annual, semi-annual or non-routine more frequent True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Appalachian Consumer Rate Relief Funding LLC)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters (as defined below) a conformed signed copy of the Registration StatementStatement as originally filed or, to the extent a signed copy is not available, a conformed copy, certified by an officer of the Issuer to be in the form as originally filed and filed, including all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and the Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act (“Rule 424”) as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) As soon as practicable, but not later than 12 months after the date hereof, the Issuer will make generally available to its security holders, an earnings statement (which need not be audited) that will satisfy the provisions of Section 11(a) of the Securities Act with respect to the Bonds.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of such jurisdictions as the Representatives may designate; provided that neither the Issuer nor Mon Power shall be required to qualify as a foreign limited liability company or corporation, as the case may be, or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements reasonably deemed by the Issuer or Mon Power, as applicable, to be unduly burdensome.
(vi) The Issuer will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Xxx Xxxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to Mon Power and the Issuer.
(vii) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities ActAct (“Rule 172”)), any event relating to or affecting the Issuer, the Bonds or the Recovery Environmental Control Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or of, the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act172), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act172), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(vviii) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing ProspectusesProspectus, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC PSCWV financial advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000)laws, (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement andStatement, except as provided the Pricing Prospectus and Final Prospectus and (v) any amendment or supplement to the Registration Statement, Pricing Prospectus, or Issuer Free Writing Prospectus required to be filed with the Commission to correct any untrue statement of a material fact or omission of any statement necessary to make the statements therein, in Section 8(a)(iv) hereof, the light of the Pricing Package circumstances in which they were made, not misleading, the result of which requires the reforming of any contracts of sale of the Bonds made by the Underwriters (including any damages or other amounts payable in connection with legal and Final Prospectuscontractual liability). If the obligation of the Underwriters to purchase the Bonds terminates this Underwriting Agreement shall be terminated in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, Section 10 or 12 hereof, the Issuer shall not be required to pay any amount for any expenses of the Underwriters or SCE (i) for any fees and expenses of counsel for the PSCWV financial advisor, except that the Issuer will reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding $100,000, incurred in contemplation of the performance of this Underwriting Agreement and will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(viiix) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viiix) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb9(z) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ixxi) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commissionshall, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parentabove, such information as required by Section 3.07(g3.07(e) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g3.07(e) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(xxii) The Issuer and SCE will not file any amendment to During a period of one year from the effective date of the Registration Statement or amendment or supplement Statement, to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, Representatives (A) as soon as they are available, a copy copies of each report any reports and financial statements of the Issuer furnished to or filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent Commission, other than such reports and financial statements that are not publicly available on the Commission’s website), XXXXX system; and (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any such additional information concerning the business and financial condition of the Issuer as the Representatives may from time to time reasonably requestrequest (such financial statements to be on a consolidated basis to the extent the accounts of the Issuer are consolidated in reports furnished to its shareholders generally or to the Commission).
(xiixiii) So long The Issuer will file with the Commission such information on Form 10-D or Form 10-K as may be required by Rule 463 under the Bonds are rated by any Rating AgencySecurities Act.
(xiv) If the Issuer elects to rely upon Rule 462(b) under the Securities Act (“Rule 462(b)”), the Issuer will comply shall file a Rule 462(b) Registration Statement with the 17g-5 RepresentationsCommission in compliance with Rule 462(b) by 10:00 P.M., other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect Washington, D.C. time, on the rating date of this Agreement, and the Bonds Issuer shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the Bonds or (ypayment of such fee pursuant to Rule 111(b) any noncompliance arising from under the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereofSecurities Act.
Appears in 1 contract
Samples: Underwriting Agreement (MP Environmental Funding LLC)
Covenants of the Issuer. The Issuer Company covenants and agrees with the several Underwriters thatas follows:
(ia) The Issuer will upon request promptly deliver If and to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with extent the offering of the Bonds.
Remarketed Notes in the Remarketing is required (ivin the view of counsel for the Company) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 be registered under the Securities Act as in effect at the opinion time of Counsel for the Underwriters Remarketing, the Company shall (Section 5(a) of this Agreement, the “Registration Covenants”):
(i) if the Registration Statement is an “automatic shelf registration statement” on Form S-3ASR and if, at any time prior to the Remarketing Settlement Date, the Company receives from the Commission a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied notice pursuant to Rule 172 401(g)(2) or otherwise ceases to be eligible to use the automatic shelf registration statement form, then (A) promptly notify the Remarketing Agent, (B) promptly file a new registration statement or post-effective amendment on the proper form relating to the Remarketed Notes, in a form satisfactory to the Remarketing Agent, (C) use its best efforts to cause such registration statement or post-effective amendment to be declared effective and (D) promptly notify the Remarketing Agent of such effectiveness; take all other action necessary or appropriate to permit the public offering and sale of the Remarketed Notes to continue as contemplated in the registration statement that was the subject of the Rule 401(g)(2) notice or for which the Company has otherwise become ineligible. References herein to the Registration Statement shall include such new registration statement or post-effective amendment, as the case may be;
(ii) pay the required Commission filing fees relating to the Remarketed Notes within the time required by Rule 456(b)(1) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act); (iii) prepare the Prospectus, file any event relating such Prospectus pursuant to or affecting the IssuerSecurities Act within the period required by the Securities Act and the rules and regulations thereunder and use commercially reasonable efforts to cause, if not already effective, the Bonds or the Recovery Property or of which the Issuer shall Registration Statement to be advised in writing declared effective by the Representatives shall occur Commission prior to the applicable Remarketing Date (it being understood that, for so long as there is a material business transaction or development that has not yet been publicly disclosed, other than in the Issuer’s reasonable judgment after consultation connection with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act)Optional Remarketing, the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which Company will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment provide such a Prospectus until the Company has publicly disclosed such transaction or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”development), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.;
Appears in 1 contract
Samples: Purchase Contract and Pledge Agreement (Dominion Resources Inc /Va/)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) 3.1 The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many Broker-Dealer such numbers of copies of the Pricing Prospectus and Final Prospectus any amendment or supplement thereto, with all appendices thereto, as they the Broker-Dealer may reasonably request.
(iii) The Issuer will cause or has caused request for the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable purposes contemplated by federal and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received noticeapplicable state securities laws. The Issuer also will use its reasonable best efforts deliver to prevent the issuance Broker-Dealer such number of copies of any such stop order and, if issued, to obtain printed sales literature or other materials prepared by or on behalf of the Issuer as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act Broker-Dealer may reasonably request in connection with the offering Offering. In the event that the Issuer provides any copies of the Bonds.
(iv) IfProspectus to any party, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing promptly provide to the Broker-Dealer the number identifying the copy of the Prospectus provided to such party.
3.2 The Issuer will comply with all requirements imposed upon it by the Representatives shall occur that rules and regulations of the Securities and Exchange Commission, and by all applicable state securities laws and regulations, to permit the continuance of offers and sales of the Securities, in accordance with the provisions of this Agreement and in the Issuer’s reasonable judgment after consultation with Counsel for Prospectus, and will amend or supplement the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or Prospectus comply with the Final requirements of federal and applicable state securities laws and regulations.
3.3 If at any time any event occurs as a result of which the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or would include an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or or, in view of the circumstances under which it was made, omit to state any material fact necessary in order to make the statements thereintherein not misleading, in the light Issuer will notify the Broker-Dealer thereof, effect the preparation of an amendment or supplement to the Prospectus which will correct such statement or omission to the reasonable satisfaction of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act)Broker-Dealer, not misleading; provided that should such event relate solely and deliver to the activities Broker-Dealer as many copies of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. supplement to the Prospectus as the Broker-Dealer may reasonably request.
3.4 The Issuer will also fulfill its obligations apply the net proceeds from the Offering received by it in the manner set out forth in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Prospectus. Furthermore, Issuer shall not be required sell any Securities to qualify as investors residing in the Territory unless Cobalt receives and approves a foreign limited liability company or dealer in securities, to file any consents to service of process under third-party due diligence report for the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensomeOffering.
(vi) 3.5 The Issuer shall not make any written or SCE willoral representations or statements to investors that contradict or are inconsistent with the statements made in the Prospectus, except as herein provided, pay amended or cause to be paid supplemented.
3.6 The Issuer shall at all expenses and taxes (except transfer taxes) in connection with times (i) the preparation and filing by it comply with all reasonable requests of the Registration StatementBroker-Dealer that are necessary for compliance with all applicable federal and state securities laws and regulations; (ii) maintain its compliance with all applicable federal and state securities laws and regulations, Pricing Prospectus except to the extent where the failure to do so will not have a material adverse effect; and Final Prospectus (iii) pay all related fees and expenses (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor FINRA fees), (iii) in each case that are necessary or appropriate to perform the qualification respective obligations of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable outBroker-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of Dealer under this Underwriting Agreement. The Issuer shall not in any event be liable comply with and adhere to any all applicable policies and procedures of the several Underwriters for damages on account Broker-Dealer, provided to the Issuer prior to the execution of loss of anticipated profitsthis Agreement, except where the failure to do so will not materially and adversely effect the Broker-Dealer or the Issuer.
(vii) During 3.7 The Issuer shall be responsible for supervising the period activities and training of its respective employees, agents, and independent contractors.
3.8 The Issuer agrees to promptly notify the Broker-Dealer concerning any material communications from any body or authority with jurisdiction over the date activities being undertaken pursuant to this Agreement in connection with the Offering, or the performance of this Underwriting Agreement the obligations set forth herein, unless notification is expressly prohibited by such body or authority.
3.9 Subject to the date that is five days after Broker-Dealer’s actions and the Closing Dateactions of others in connection with the Offering, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed comply with all requirements imposed upon it by applicable federal and state securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documentslaws. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstandingUpon request, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, Broker-Dealer a copy of each report of such papers filed by the Issuer filed in connection with any such registration or exemption, as applicable.
3.10 During the Commission under Offering Period, the Exchange Act or mailed Issuer will deliver to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, Broker-Dealer a copy of any filings with report, documents, materials, or information provided to investors in the CPUC pursuant Offering by the Issuer or any other party, at the time that such reports, documents, materials, or information are furnished to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filingsholders of the Securities, and (C) from time to time, any such other information concerning the Issuer Issuer, as the Representatives may reasonably requestbe requested.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed signed copy of the Registration StatementStatement as originally filed or, to the extent a signed copy is not available, a conformed copy, certified by an officer of the Issuer to be in the form as originally filed filed, including all Incorporated Documents and exhibits and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery System Restoration Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of of, the Pricing Package Prospectus, the Pricing Term Sheet and each other Issuer Free Writing Prospectus, considered together (the “Pricing Package”) or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d3(e) above.
(v) As soon as practicable, but not later than 16 months, after the date hereof, the Issuer will make generally available to its security holders, an earnings statement (which need not be audited) that will satisfy the provisions of Section 11(a) of the Securities Act.
(vi) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States such jurisdictions as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vivii) The Issuer or SCE the Company will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, trustee and rating agency and CPUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,00010,000), and (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package Prospectus and Final Prospectus. If The Issuer shall not, however, be required to pay any amount for any expenses of the Underwriters, except that, if the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections Section 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000100,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(viiviii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viiiix) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb9(y) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ixx) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with may deregister under the Commission unless permitted under applicable law Commission’s rules and the terms of the Basic Documentsregulations. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parentwebsite, such information as required by Section 3.07(g3.07(d) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g3.07(d) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(xxi) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx & XxXxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuerin writing.
(xixii) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC PUCT pursuant to the Financing Order including, but not limited to, any issuance advice letter Issuance Advice Letter or any routine annual or non-routine more frequent True-Up Adjustment filingsAdvice Letters, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (CenterPoint Energy Restoration Bond Company, LLC)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Transition Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE AEP Texas will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC PUCT advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE AEP Texas (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE AEP Texas will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE AEP Texas and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC PUCT pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine annual, semi-annual or non-routine more frequent True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (AEP Texas Restoration Funding LLC)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).
(viii) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are Class A-1 Notes remains outstanding, the Issuer will furnish to has made certain covenants for the Representatives, if and to benefit of the extent not posted on XXXXX Class A-1 Noteholders which are set out in the Master Trust Deed. These covenants include the following.
(a) The Issuer shall act continuously as trustee of the Trust until the Trust is terminated as provided by the Master Trust Deed or the Issuer has retired or been removed from office in the manner provided under the Master Trust Deed.
(b) The Issuer shall:
(i) act honestly and in good faith and comply with all relevant material laws in the performance of its affiliate’s websiteduties and in the exercise of its discretions under the Master Trust Deed;
(ii) subject to the Master Trust Deed, (A) exercise such diligence and prudence as soon as availablea prudent person of business would exercise in performing its express functions and in exercising its discretions under the Master Trust Deed, a copy of each report having regard to the interests of the Class A Noteholders, the Class B Noteholders, the Class C Noteholders, the Beneficiaries and the other Creditors of the Trust in accordance with its obligations under the relevant Transaction Documents;
(iii) use its best endeavours to carry on and conduct its business in so far as it relates to the Master Trust Deed in a proper and efficient manner; -------------------------------------------------------------------------------- Page 73 + Note Trust Deed Allens Arthur Robinsxx --------------------------------------------------------------------------------
(iv) keep, or ensure that the Manager keeps, accounting records which correctly record and explain all amounts paid and received by the Issuer;
(v) keep the Trust separate from each other trust which is constituted under the Master Trust Deed and from its own assets and account for assets and liabilities of the Trust separately from those of other trusts constituted under the Master Trust Deed and from its own assets and liabilities;
(vi) do everything and take all such actions which are necessary (including obtaining all appropriate Authorisations which relate to it as trustee of the Trust and taking all actions necessary to assist the Manager to obtain all other appropriate Authorisations) to ensure that it is able to exercise all its powers and remedies and perform all its obligations under the Master Trust Deed, the Transaction Documents and all other deeds, agreements and other arrangements entered into by the Issuer filed under the Master Trust Deed;
(vii) not, as Issuer, engage in any business or activity in respect of the Trust except as contemplated or required by the Transaction Documents;
(viii) except as contemplated or required by the Transaction Documents, maintain an independent and arm's length relationship with its related bodies corporate in relation to dealings affecting the Trust;
(ix) except as contemplated or required by the Transaction Documents, not, in respect of the Trust, guarantee or become obligated for the debts of any other entity or hold out its credit as being available to settle the obligations of others;
(x) comply with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy rules and regulations of any filings with the CPUC pursuant to the Financing Order including, but not limited to, stock exchange on which any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) Note is listed from time to timetime (the STOCK EXCHANGE); and
(xi) within 45 days of notice from the Manager to do so, remove any information concerning of its agents or delegates that breaches any obligation imposed on the Issuer as under the Representatives may reasonably requestMaster Trust Deed or any other Transaction Document where the Manager believes it will have a Material Adverse Effect.
(xiic) So long Except as provided in any Transaction Document (and other than the Bonds are rated by any Rating Agencycharge given to the Security Trustee), the Issuer shall not, nor shall it permit any of its officers to, sell, mortgage, charge or otherwise encumber or part with possession of any assets of the Trust (the TRUST ASSETS).
(d) The Issuer shall duly observe and perform the covenants and obligations of the Master Trust Deed and will comply be personally liable to the Servicer, the Noteholders, the Beneficiaries, the Note Manager or any other Creditors only if it is guilty of negligence, fraud or Default (as defined in Condition 15). The Issuer is not responsible for the acts or omissions of its agents or delegates (including persons referred to in clause 17.6 of the Master Trust Deed) selected by the Issuer in good faith using reasonable care except where the Trustee expressly instructs the agent or delegate to do or omit to do the relevant act, if the Trustee is aware of the default and does not take the action available to it under the Transaction Documents to address the act or omission or where the Transaction Documents expressly provide that the Trustee is so liable. -------------------------------------------------------------------------------- Page 74 + Note Trust Deed Allens Arthur Robinsxx --------------------------------------------------------------------------------
(e) The Issuer will open and operate certain bank accounts in accordance with the 17g-5 RepresentationsMaster Trust Deed and the Supplementary Terms Notice.
(f) Subject to the Master Trust Deed and any Transaction Document to which it is a party, other than (x) any noncompliance the Issuer shall act on all directions given to it by the Manager in accordance with the terms of the 17g-5 Representations that would not have a material adverse effect on Master Trust Deed.
(g) The Issuer shall properly perform the rating functions which are necessary for it to perform under all Transaction Documents in respect of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereofTrust.
Appears in 1 contract
Samples: Note Trust Deed (Crusade Global Trust No. 2 of 2006)
Covenants of the Issuer. The Issuer covenants and agrees with the several Underwriters that:
(i) The Issuer will upon request promptly deliver to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters (as defined below) a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Storm Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or of, the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer willwill promptly notify the Representatives of such event and, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(viii) The Issuer or SCE CPL will, except as herein provided, pay or cause to be paid paid, all reasonable costs and expenses of the Issuer, CPL and the Trustee and certain costs and expenses of the Underwriters as specifically set forth herein incident to the performance of the obligations hereunder, including, without limiting the generality of the foregoing, (A) all costs, taxes and expenses incident to the issue and delivery of the Bonds to the Underwriters, (except transfer taxesB) in connection with (i) all costs and expenses incident to the preparation preparation, printing, reproduction and filing by it distribution of the Registration StatementStatement as originally filed with the Commission and each amendment or supplement thereto, the Pricing Prospectus (including any amendments and supplements thereto), the Final Prospectus (including any amendments and supplements thereto) ), and any Issuer Free Writing Prospectuses, (iiC) all reasonable fees, disbursements and expenses of (1) the issuance Issuer’s counsel, (2) CPL’s counsel, (3) the Trustee’s counsel, (4) the Underwriters’ counsel, (5) the Issuer’s accountants and delivery (6) CPL’s accountants, (D) all fees charged by the Rating Agencies in connection with the rating of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees)Bonds, (iiiE) all fees of DTC in connection with the book-entry registration of the Bonds, (F) all costs and expenses incurred in connection with the qualification of the Bonds for sale under blue-sky the laws of such jurisdictions in the United States as the Representatives may designate, together with costs and expenses in connection with any filing with the National Association of Securities Dealers with respect with the transactions contemplated hereby (including reasonable counsel fees not to exceed $15,00010,000), (ivG) the and all costs and expenses of printing and delivery distributing all of the documents in connection with the Bonds, and (H) all fees, costs and expenses of the LPSC and its advisors and counsel in connection with the issuance of the Bonds.
(iii) The Issuer will cause the Pricing Prospectus and the Final Prospectus to be filed with the Commission pursuant to Rule 424 as soon as practicable and advise the Underwriters of reasonable quantities any stop order suspending the effectiveness of the Registration Statement and, except as or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If the sale of the Bonds provided for herein is not consummated because any condition set forth in Section 8(a)(iv8 hereof is not satisfied, because of any termination pursuant to Section 11 hereof or because of any refusal, inability or failure on the part of CPL or the Issuer to perform any agreement herein or comply with any provision hereof other than by reason of a default (including under Section 6) hereof, by any of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default)Underwriters, 9, 10 CPL or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters upon demand for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred by them in contemplation connection with the proposed purchase and sale of the performance of this Underwriting AgreementBonds. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(viiv) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will not, without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-asset backed securities (other than the Bonds).
(viiivi) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 9(bb8(w) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ixvii) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parentparent or affiliate, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; , provided that nothing herein shall prevent the Issuer shall not voluntarily suspend from suspending or terminate terminating its filing obligations with the Commission unless as and to the extent permitted under applicable law and the terms of the Basic Documentsby law. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parentabove, such information as required by Section 3.07(g3.07(d) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g3.07(d) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(xviii) The Issuer and SCE will not file any amendment furnish to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Representatives and Counsel for the Underwriters”, without charge, copies of the Registration Statement (including exhibits thereto), shall reasonably object by written notice to SCE and as many copies of the Pricing Prospectus and the IssuerFinal Prospectus and any amendment or supplement thereto as the Representatives may reasonably request.
(xiix) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC LPSC pursuant to the Securitization Act and the Financing Order including, but not limited to, any issuance advice letter Issuance Advice Letter or any routine annual or non-routine more frequent True-Up Adjustment filingsAdvice Letters, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Cleco Katrina/Rita Hurricane Recovery Funding LLC)
Covenants of the Issuer. The Issuer Company agrees and covenants and agrees with the several Underwriters that:
(a) prior to the Closing Date, the Company shall, and shall cause each of the Subsidiaries to, (i) The Issuer will upon request promptly deliver to cause the Representatives and Counsel to the Underwriters a conformed copy business of the Registration StatementGroup to be conducted in all material aspects in the ordinary course of business and (ii) not take any action that, certified by if taken after the Closing, would constitute (or, with the giving of notice or the passage of time, would constitute) an officer Event of Default (as defined in the Instrument) or require the Investor’s consent under the terms of the Issuer to be in the form as originally filed and all amendments theretoNotes.
(iib) The Issuer will deliver to the UnderwritersCompany shall pay (i) any stamp, as soon as practicable after issue, registration, documentary or other taxes and duties, including interest and penalties in the date hereofCayman Islands, as many copies of the Pricing Prospectus Hong Kong, PRC and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause all other relevant jurisdictions payable on or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing the creation and furnishing to issuance of the Underwriters at Notes, the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package New Shares or the Final Prospectus New ADSs or (B) making an appropriate filing pursuant to Section 13 the execution or Section 15 delivery of the Exchange Act, which will supplement or amend the Pricing Package this Agreement or the Final Prospectus so thatInstrument; and (ii) any value added, as supplemented turnover or amended, it will not contain any untrue statement of a material fact or omit similar tax payable in respect thereof (and references in this Agreement to state any material fact necessary in order such amount shall be deemed to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing include any such amendment or supplement. The Issuer will also fulfill its obligations set out taxes so payable in Section 3(d) aboveaddition to it).
(vc) The Issuer will furnish the Company shall (i) promptly notify the Investor of any change affecting any of its representations, warranties, agreements and/or indemnities herein at any time prior to payment being made to the Company on the Closing Date and (ii) take such proper information steps as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed reasonably requested by the Issuer Investor to be unduly burdensomeremedy the same.
(vid) The Issuer or SCE will, except as herein provided, pay or cause the Company shall obtain all authorizations relating to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it issuance of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing ProspectusesNotes, (ii) the issuance and delivery remittance of the Bonds as provided proceeds received by the Company from the sale of the Notes to any entity organized in Section 7 hereof (includingthe PRC, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees), (iii) the qualification use of such proceeds by any entity organized in the PRC, including the filing by a PRC Subsidiary with NDRC of the Bonds under blue-sky laws requisite information and documents within ten (including counsel fees not to exceed $15,000), (iv10) Business Days after the printing and delivery to the Underwriters date of reasonable quantities issuance of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates Notes in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profitsNDRC Circular.
(viie) During the period from Company shall and shall cause the date of this Underwriting Agreement Group to the date that is five days complete after the Closing Datecertain operational improvement steps in accordance with a plan to be furnished by the Investor and agreed by the Company.
(f) for so long as any Notes remain outstanding, the Issuer Company shall, and shall cause all other Group Companies to, comply with and require their respective Affiliated Persons, in their capacities as such, to comply with all applicable Laws, including the Securities Laws; in particular, the Company shall and shall cause all other Group Companies to strictly comply with all applicable Anti-Corruption Laws, Anti-Money Laundering Laws, and Sanctions in their business operations. The Company further covenants to the Investor that the Company will not, without the prior written consent of the Representativeswill take reasonable efforts to ensure that its Affiliated Persons will not, offerand will cause all other Group Companies not to (and will cause all other Group Companies to take reasonable efforts to ensure that their respective Affiliated Persons will not), sell or contract offer to sellpay, promise to pay, or otherwise dispose ofauthorize the payment of any money or anything of value to any Government Official (including any Government Officials to whom such Group Company or its Affiliated Person knows or ought to know that all or a portion of such money or things of value will be offered, given or promised, directly or indirectly) for the purpose of (1) influencing any act or decision of Government Officials in their official capacity; (2) inducing Government Officials to act or omit to act in violation of lawful duties; (3) securing any improper advantage; (4) inducing Government Officials to influence or affect any act or decision of any Governmental Authority; or (5) assisting any Group Company in obtaining or retaining business, or announce directing business to, such member. The Company shall cause the offering ofGroup to maintain a reasonably complete financial record and reasonably effective internal control measures in accordance with applicable Laws, including Anti- Corruption Laws and GAAP. The Company shall provide the Investor with reasonable access to the books and records of the Group and shall cooperate with any asset-backed securities (other than compliance audit or inquiry conducted by the Bonds)Investor.
(viiig) To the extent, if any, Company shall maintain its eligibility to register the Ordinary Shares (or such Ordinary Shares in the form of ADSs) for resale by the Noteholder on Form F-3.
(h) the Company agrees and undertakes that the Investor may exercise its rights in respect of any rating necessary to satisfy and all the condition Ordinary Shares (or such Ordinary Shares in the form of ADS) convertible from any Notes held by the Investor in accordance with the terms set forth in Section 9(bb) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actionsSchedule 1 hereto.
(ixi) For a period from in case of any breach of the undertakings listed in Sections 6 (f), (g) or (h), the Investor shall have the right, at the Investor’s option, to require the Company to, and the Company shall, within ten (10) Business Days of the date of this Underwriting Agreement until the retirement notice requiring such repurchase, repurchase for cash all of such Investor’s Notes, or any portion thereof that is an integral multiple of $100,000 in principal amount, at a repurchase price that is equal to 100% of the Bonds or until such time as principal amount of the Underwriters shall cease Notes to maintain a secondary market in the Bondsbe repurchased, whichever occurs firstplus accrued and unpaid interest to, but excluding, the Issuer shall file with the Commission, and date such repurchase price is fully paid to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunderInvestor.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Samples: Announcement
Covenants of the Issuer. The Issuer Company covenants and agrees with the several Underwriters thatas follows:
(ia) The Issuer will upon request promptly deliver If and to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with extent the offering of the Bonds.
Remarketed Debentures in the Remarketing is required (ivin the view of counsel for the Company) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 be registered under the Securities Act as in effect at the opinion time of Counsel the Remarketing, the Company shall (Section 5(a) of this Agreement, the “Registration Covenants”):
(i) if the Registration Statement is an “automatic shelf registration statement” on Form S-3ASR and if, at any time prior to the Remarketing Settlement Date, the Company receives from the Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to use the automatic shelf registration statement form, then (A) promptly notify the Remarketing Agent, (B) promptly file a new registration statement or post-effective amendment on the proper form relating to the Remarketed Debentures, in a form satisfactory to the Remarketing Agent, (C) use its best efforts to cause such registration statement or post-effective amendment to be declared effective and (D) promptly notify the Remarketing Agent of such effectiveness; take all other action necessary or appropriate to permit the public offering and sale of the Remarketed Debentures to continue as contemplated in the registration statement that was the subject P-10 of the Rule 401(g)(2) notice or for which the Underwriters a prospectus covering Company has otherwise become ineligible. References herein to the Bonds is Registration Statement shall include such new registration statement or post-effective amendment, as the case may be;
(ii) pay the required Commission filing fees relating to the Remarketed Debentures within the time required by law Rule 456 of the Securities Act;
(iii) prepare the Prospectus, file any such Prospectus pursuant to the Securities Act within the period required by the Securities Act and the rules and regulations thereunder and use commercially reasonable efforts to cause, if not already effective, the Registration Statement to be delivered declared effective by the Commission prior to the applicable Remarketing Date (it being understood that, for so long as there is a material business transaction or development that has not yet been publicly disclosed, other than in connection with sales an Optional Remarketing, the Company will not be required to file such Registration Statement or provide such a Prospectus until the Company has publicly disclosed such transaction or development);
(iv) file with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company, be required by an Underwriter the Securities Act or dealer requested by the Commission;
(v) advise the Remarketing Agent promptly after it receives notice thereof, of the time when, (A) prior to the Remarketing Settlement Date, any amendment to the Registration Statement has been filed or becomes effective or, (B) before, on or after the Remarketing Settlement Date, any supplement to the Prospectus or any amended Prospectus has been filed, and in each such case excluding documents filed under the Exchange Act incorporated by reference and in each case of (A) and (B) furnish the Remarketing Agent with copies of such notice;
(vi) file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a) or (c), 14 or 15(d) of the Exchange Act subsequent to the Commencement Date and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Remarketed Debentures (including in circumstances where such requirement may be satisfied pursuant to Rule 172 172), and during such same period to advise the Remarketing Agent, promptly after it receives notice thereof, (A) of the time when any amendment to any Registration Statement has become effective or any supplement to any Prospectus or any amended Prospectus has been filed, (B) of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus, (C) of the suspension of the qualification of the Remarketed Debentures for offering or sale in any jurisdiction, (D) of the initiation or threatening of any proceeding or examination for any such purpose or pursuant to Section 8A of the Securities Act, or (E) of any request by the Commission for the amending or supplementing of any Registration Statement or Prospectus or for additional information; and in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any Prospectus or suspending any such qualification, use promptly its best efforts to obtain its withdrawal;
(vii) if reasonably requested by the Remarketing Agent, prepare a final term sheet for the Remarketed Debentures, containing solely a description of the Remarketed Debentures, in a form agreed to with the Remarketing Agent, and file such final term sheet and all other Issuer Free Writing Prospectuses required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Securities Act within the time required by such Rule;
(viii) furnish promptly to the Remarketing Agent such copies of the following documents in such quantities as the Remarketing Agent shall reasonably request: (a) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits); (b) the Preliminary Prospectus and any amendment or supplement thereto; (c) the Prospectus and any amendment or supplement thereto; (d) any Issuer Free Writing Prospectus and any amendment or supplement thereto, and (e) any document incorporated by reference in the Prospectus (excluding exhibits thereto); and, if at any time when delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act)) is required in connection with the Remarketing, any event relating to or affecting the Issuer, the Bonds or the Recovery Property or development shall have occurred as a result of which (1) the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (Prospectus as defined below) should be set forth in a supplement to, then amended or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus (or in lieu thereof, the Pricing Package notice referred to in Rule 173(a) under the Securities Act) is delivered, not misleading, or (2) if for any other reason it shall be necessary, in the reasonable judgment of the Company, during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Final Exchange Act, or (3) if it shall be necessary during such same period to amend or supplement an Issuer Free Writing Prospectus is delivered in order for the Issuer Free Writing Prospectus, as so amended or supplemented, not to a purchaser conflict with the information then contained in the Registration Statement, then in each case notify the Remarketing Agent and, upon its request, file such document and prepare and furnish without charge to the Remarketing Agent and to any dealer in securities as many copies as the Remarketing Agent may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance or an amended or supplemented Issuer Free Writing Prospectus that will not conflict with the Registration Statement;
(including in circumstances where such requirement may be satisfied ix) during the time between the applicable Commencement Date and the Remarketing Settlement Date, prior to filing with the Commission (a) any amendment to the Registration Statement or supplement to the Prospectus or (b) any Prospectus pursuant to Rule 172 424 under the Securities Act, furnish a copy thereof to the Remarketing Agent; and not file any such amendment or supplement that shall be reasonably disapproved by the Remarketing Agent;
(x) as soon as practicable, but in any event not later than eighteen months, after the date of a Successful Remarketing, to make generally available to its security holders an earnings statement of the Company (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.and
(vxi) The Issuer will furnish take such proper information action as the Remarketing Agent may be lawfully required and otherwise cooperate reasonably request in qualifying order to qualify the Bonds Remarketed Debentures for offer and sale under the blue-sky securities or “blue sky” laws of such jurisdictions as the states Remarketing Agent may reasonably request and will continue such qualifications in effect so long as required for distribution of the United States as the Representatives may designateRemarketed Debentures; provided that in no event shall the Issuer shall not Company be required to qualify as a foreign limited liability company or dealer corporation in securitiesa jurisdiction in which it is not so qualified, to file any consents a general consent to service of process under the laws of in any jurisdiction, jurisdiction or meet to submit to any other requirements deemed by the Issuer to be which it deems unduly burdensome.
(vixii) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with Company shall pay: (i) the costs incident to the preparation and filing by it printing of the Registration Statement, Pricing Prospectus and Final Prospectus (including if any, any amendments and supplements thereto) and Preliminary Prospectus, any Issuer Free Writing ProspectusesProspectus, any Prospectus and any other Remarketing Materials and any amendments or supplements thereto; (ii) the issuance costs of distributing the Registration Statement, if any, any Prospectus and delivery any other Remarketing Materials and any amendments or supplements thereto; (iii) any fees and expenses of qualifying the Remarketed Debentures under the securities laws of the Bonds several jurisdictions as provided in Section 7 hereof 5(a)(xi) and of preparing, printing and distributing a Blue Sky Memorandum, if any (including, without limitation, including any related reasonable fees and disbursements expenses of Counsel counsel to the Remarketing Agent); (iv) any fees charged by investment rating agencies for rating of the Underwriters Remarketed Debentures; (v) all other costs and all trustee, rating agency expenses incident to the performance of the obligations of the Company hereunder and CPUC advisor fees), the Remarketing Agent hereunder; and (iiivi) the qualification reasonable fees and expenses of counsel to the Remarketing Agent in connection with the review by the Financial Industry Regulatory Authority, Inc. of the Bonds under blue-sky laws Remarketed Debentures (including counsel such fees and expenses not to exceed $15,000[ ]).
(b) The Company shall furnish the Remarketing Agent with such information and documents as the Remarketing Agent may reasonably request in connection with the transactions contemplated hereby, (iv) the printing and delivery to make reasonably available to the Underwriters of reasonable quantities Remarketing Agent and any accountant, attorney or other advisor retained by the Remarketing Agent such information, and such access to the appropriate officers, employees and accountants of the Registration Statement andCompany, except as provided that parties would customarily require, and reasonably requested by the Remarketing Agent, in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates connection with a due diligence investigation conducted in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profitsapplicable securities laws.
(viic) During Between the period from applicable Commencement Date and the date of this Underwriting Agreement to the date that is five days after the Closing applicable Remarketing Settlement Date, the Issuer Company will not, without the prior written consent of the RepresentativesRemarketing Agent (which consent may be withheld at the reasonable discretion of the Remarketing Agent), directly or indirectly, sell, offer, contract to sell or contract grant any option to sell, or otherwise dispose of, directly or indirectly, or announce any debt securities which mature more than one year after the offering of, any asset-backed securities (other than applicable Remarketing Settlement Date of the Bonds)Company similar to the Remarketed Debentures.
(viiid) To The Company represents and agrees that, unless it obtains the extentprior written consent of the Remarketing Agent, which consent shall not be unreasonably withheld, and the Remarketing Agent represents and agrees that, unless it obtains the prior written consent of the Company, it has not made and will not make any offer relating to the Remarketed Debentures that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 of the Act), required to be filed by the Company with the Commission or retained by the Company under Rule 433; provided that, if any, that any rating necessary to satisfy the condition set forth prepared and used in accordance with Section 9(bb5(f) of this Underwriting Agreement is conditioned upon the furnishing of documents or the taking of other actions by the Issuer on or after the Closing Date, the Issuer shall furnish such documents and take such other actions.
(ix) For a period from the date of this Underwriting Agreement until the retirement of the Bonds or until such time as the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs first, the Issuer shall file with the Commission, and to the extent permitted by and consistent with the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parentAgreement, such periodic reports, if any, as are required (without regard to the number of holders of Bonds to the extent permitted by and consistent with the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer prior written consent shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law and the terms of the Basic Documents. The Issuer shall also, to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture deemed given with respect to any final term sheet. Any such free writing prospectus consented to in writing by the BondsCompany or the Remarketing Agent, as the case may be, is hereinafter referred to as a “Permitted Free Writing Prospectus”. To the extent The Company represents that the Issuer’s obligations are terminated or limited by it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an amendment to Section 3.07(g) “issuer free writing prospectus” (as defined in Rule 433 of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if has complied and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably request.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance requirements of Rules 164 and 433 of the 17g-5 Representations Securities Act applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
(e) The Company will prepare a final term sheet relating to the Remarketed Debentures, containing only information that would not have a material adverse effect on describes the rating final terms of the Bonds or Remarketed Debentures after providing the Bonds or Remarketing Agent and its legal counsel with a reasonable opportunity to review and comment on such final term sheet (ysuch final term sheet to be in form and substance as last reviewed by the Remarketing Agent and the Company), and will file such final term sheet within the period required by Rule 433(d) any noncompliance arising from the breach by an Underwriter of the representations Securities Act following the date such final terms have been established for the Remarketed Debentures. Any such final term sheet is an Issuer Free Writing Prospectus and warranties and covenants set forth in Section 13 hereofa Permitted Free Writing Prospectus for purposes of this Agreement.
Appears in 1 contract
Covenants of the Issuer. The Issuer agrees and covenants and agrees with the several Underwriters that:
(ia) The Issuer will upon request promptly deliver prior to the Representatives and Counsel to the Underwriters a conformed copy of the Registration Statement, certified by an officer of the Issuer to be in the form as originally filed and all amendments thereto.
(ii) The Issuer will deliver to the Underwriters, as soon as practicable after the date hereof, as many copies of the Pricing Prospectus and Final Prospectus as they may reasonably request.
(iii) The Issuer will cause or has caused the Final Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act as soon as practicable and will advise the Underwriters of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding therefor of which Issuer shall have received notice. The Issuer will use its reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Issuer has complied and will comply with Rule 433 under the Securities Act in connection with the offering of the Bonds.
(iv) If, during such period of time (not exceeding nine months) after the Final Prospectus has been filed with the Commission pursuant to Rule 424 under the Securities Act as in the opinion of Counsel for the Underwriters a prospectus covering the Bonds is required by law to be delivered in connection with sales by an Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), any event relating to or affecting the Issuer, the Bonds or the Recovery Property or of which the Issuer shall be advised in writing by the Representatives shall occur that in the Issuer’s reasonable judgment after consultation with Counsel for the Underwriters (as defined below) should be set forth in a supplement to, or an amendment of the Pricing Package or the Final Prospectus in order to make the Pricing Package or the Final Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Issuer will, at its expense, amend or supplement the Pricing Package or the Final Prospectus by either (A) preparing and furnishing to the Underwriters at the Issuer’s expense a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Pricing Package or the Final Prospectus or (B) making an appropriate filing pursuant to Section 13 or Section 15 of the Exchange Act, which will supplement or amend the Pricing Package or the Final Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Pricing Package or the Final Prospectus is delivered to a purchaser (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), not misleading; provided that should such event relate solely to the activities of any of the Underwriters, then such Underwriters shall assume the expense of preparing and furnishing any such amendment or supplement. The Issuer will also fulfill its obligations set out in Section 3(d) above.
(v) The Issuer will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Bonds for offer and sale under the blue-sky laws of the states of the United States as the Representatives may designate; provided that the Issuer shall not be required to qualify as a foreign limited liability company or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or meet any other requirements deemed by the Issuer to be unduly burdensome.
(vi) The Issuer or SCE will, except as herein provided, pay or cause to be paid all expenses and taxes (except transfer taxes) in connection with (i) the preparation and filing by it of the Registration Statement, Pricing Prospectus and Final Prospectus (including any amendments and supplements thereto) and any Issuer Free Writing Prospectuses, (ii) the issuance and delivery of the Bonds as provided in Section 7 hereof (including, without limitation, reasonable fees and disbursements of Counsel for the Underwriters and all trustee, rating agency and CPUC advisor fees), (iii) the qualification of the Bonds under blue-sky laws (including counsel fees not to exceed $15,000), (iv) the printing and delivery to the Underwriters of reasonable quantities of the Registration Statement and, except as provided in Section 8(a)(iv) hereof, of the Pricing Package and Final Prospectus. If the obligation of the Underwriters to purchase the Bonds terminates in accordance with the provisions of Sections 7 (but excluding terminations arising thereunder out of an Underwriter default), 9, 10 or 12 hereof, the Issuer or SCE (i) will reimburse the Underwriters for the reasonable fees and disbursements of Counsel for the Underwriters, and (ii) will reimburse the Underwriters for their reasonable out-of-pocket expenses, such out-of-pocket expenses in an aggregate amount not exceeding $200,000, incurred in contemplation of the performance of this Underwriting Agreement. The Issuer shall not in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(vii) During the period from the date of this Underwriting Agreement to the date that is five days after the Closing Date, the Issuer will notshall (i) cause the business of the Group shall be conducted in all material aspects in the ordinary course of business and (ii) not take any action that, if taken after the Closing, would constitute (or, with the giving of notice or the passage of time, would constitute) an Event of Default (as defined in the Note Instrument) or require the Investor’s consent under the terms of the Notes;
(b) prior to the Closing Date, the Issuer shall not amend, restate, or otherwise modify the Articles or the Shareholders Agreement without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities (other than the Bonds).Investor;
(viiic) To the extentIssuer shall pay any stamp, if anyissue, that any rating necessary to satisfy registration, documentary or other taxes and duties, including interest and penalties in the condition set forth Cayman Islands, Hong Kong, PRC and all other relevant jurisdictions payable on or in Section 9(bb) connection with the creation and issuance of the Notes and/or the Warrants and/or the New Shares on the conversion of the Notes or the exercise of the Warrants or the execution or delivery of this Underwriting Agreement is conditioned upon Agreement, the furnishing of documents Note Instrument or the taking Warrant Instrument; and any value added, turnover or similar tax payable in respect thereof (and references in this Agreement to such amount shall be deemed to include any such taxes so payable in addition to it);
(d) the Issuer shall (i) promptly notify the Investor of other actions by any change affecting any of its representations, warranties, agreements and/or indemnities herein at any time prior to payment being made to the Issuer on the Closing Date and (ii) take such steps as may be reasonably requested by the Investor to remedy the same;
(e) at all times for so long as any Notes or Warrants (or any portion thereof) remain outstanding, the Issuer shall take all actions necessary to have authorized, and reserved for the purpose of issuance, no less than one hundred percent (100%) of the aggregate number of Ordinary Shares needed to provide for the complete issuance of the New Shares underlying the Notes and the Warrants;
(f) the Issuer and its Subsidiaries shall comply with all applicable laws, and will not take any action which would make the statement set out in clause 5.1(j) incorrect or untrue, and will maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith;
(g) the Issuer shall obtain and maintain in full force and effect all consents, clearances, approvals, authorisations, orders, registration or qualification as referred to in clause 5.1(m) by not later than the Closing Date;
(h) at all times for so long as any Notes or Warrants (or any portion thereof) remain outstanding, the Issuer shall not and shall cause its Subsidiaries or any Person who acts on behalf of the Issuer not to (i) use any funds or proceeds from the sale of the Notes or the exercise of the Warrants for unlawful contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity; or (ii) make any unlawful payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds;
(i) as soon as practicable after the Closing Date, the Issuer shall furnish procure that each of the shareholders of the Issuer who directly or indirectly holds any Ordinary Shares and is subject to any of the registration or reporting requirements of Circular of the State Administration of Foreign Exchange on Issues concerning Foreign Exchange Administration over the Overseas Investment and Financing and Round-trip Investment by Domestic Residents via Special Purpose Vehicles or any other applicable State Administration of Foreign Exchange rules and regulations will comply with such documents reporting and/or registration requirements and take keep such other actions.reporting and/or registration up to date;
(ixj) For a period from the date of this Underwriting Agreement until the retirement Issuer shall procure each member of the Bonds Group to conduct their respective business as currently conducted or until such time proposed to be conducted in compliance with all applicable laws of their relevant jurisdictions in all material aspects;
(k) the Issuer shall and shall procure each member of the Group, which is incorporated pursuant to applicable PRC laws, to comply with the applicable PRC laws with respect to Social Insurance and housing fund in all material aspects; and
(l) as soon as practicable after the Underwriters shall cease to maintain a secondary market in the Bonds, whichever occurs firstClosing Date, the Issuer shall file (i) cause the VIE Entity and VIE Shareholders to complete the registration of the pledge created on the equity interests of the VIE Entity in accordance with the CommissionVIE Arrangement with the relevant Governmental Entity, and provide to the extent permitted by and consistent with Investor the Issuer’s obligations under applicable law, make available on the website associated with the Issuer’s parent, written record evidencing such periodic reports, if any, as are required (without regard pledge registrations satisfactory to the number Investor when such evidence becomes available; and (ii) cause the spouse of holders each of Bonds the VIE Shareholders to execute and deliver to the extent permitted by and consistent with Group a spouse consent letter acknowledging such VIE Shareholder’s equity interests in the Issuer’s obligations under applicable law) from time to time under Section 13 or Section 15(d) of the Exchange Act; provided that the Issuer shall not voluntarily suspend or terminate its filing obligations with the Commission unless permitted under applicable law VIE Entity and the terms of the Basic Documents. The Issuer shall alsoVIE Arrangements, and provided to the extent permitted by and consistent with the Issuer’s obligations under applicable law, include in the periodic and other reports to be filed with the Commission as provided above or posted on the website associated with the Issuer’s parent, such information as required by Section 3.07(g) of the Indenture with respect to the Bonds. To the extent that the Issuer’s obligations are terminated or limited by an amendment to Section 3.07(g) of the Indenture, or otherwise, such obligations shall be correspondingly terminated or limited hereunder.
(x) The Issuer and SCE will not file any amendment to the Registration Statement or amendment or supplement to the Final Prospectus or amendment or supplement to the Pricing Package during the period when a prospectus relating to the Bonds is required to be delivered under the Securities Act, without prior notice to the Underwriters, or to which Hunton Xxxxxxx Xxxxx LLP, who are acting as counsel for the Underwriters (“Counsel for the Underwriters”), shall reasonably object by written notice to SCE and the Issuer.
(xi) So long as any of the Bonds are outstanding, the Issuer will furnish to the Representatives, if and to the extent not posted on XXXXX or the Issuer or its affiliate’s website, (A) as soon as available, Investor a copy of each report of the Issuer filed with the Commission under the Exchange Act or mailed to the Bondholders (to the extent such reports are not publicly available on the Commission’s website), (B) upon request, a copy of any filings with the CPUC pursuant to the Financing Order including, but not limited to, any issuance advice letter or any routine or non-routine True-Up Adjustment filings, and (C) from time to time, any information concerning the Issuer as the Representatives may reasonably requestspouse consents when such executed document becomes available.
(xii) So long as the Bonds are rated by any Rating Agency, the Issuer will comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
Appears in 1 contract
Samples: Convertible Note and Warrant Purchase Agreement (Meili Auto Holdings LTD)
