Additional Covenants of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, further covenant and agree with the Subject Agent as follows: (a) Each Transaction Proposal made by the Company that is accepted by the Subject Agent by means of a Transaction Acceptance and each execution and delivery by the Company of a Terms Agreement shall be deemed to be (i) an affirmation that the representations, warranties and agreements of the Company and the Operating Partnership herein contained and contained in any certificate delivered to the Subject Agent pursuant hereto are true and correct at such Time of Acceptance or the date of such Terms Agreement, as the case may be, and (ii) an undertaking that such representations, warranties and agreements will be true and correct on any applicable Time of Sale and Settlement Date, as though made at and as of each such time (it being understood that such representations, warranties and agreements shall relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of such Transaction Acceptance or Terms Agreement, as the case may be). (b) Each time that (i) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall be amended or supplemented (including, except as noted in the proviso at the end of this Section 6(b), by the filing of any Incorporated Document), (ii) there is a Principal Settlement Date pursuant to a Terms Agreement, or (iii) otherwise as the Subject Agent shall reasonably request (provided that the Company may decline to comply with any request pursuant to this clause (iii) unless such request is delivered at any time (I) during which a Transaction Acceptance is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein), (II) during which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or (III) during any period beginning on and including the first day of a Terms Agreement through and including the related Settlement Date) (each date referred to clauses (i), (ii) and (iii) above, a “Bring-Down Delivery Date”), the Company shall, unless the Subject Agent agrees otherwise, furnish or cause to be furnished to the Subject Agent a certificate, dated as of such Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the certificate referred to in Section 5(a)(i) hereof, modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificates or, in lieu of such certificate, a certificate to the effect that the statements contained in the certificate referred to in Section 5(a)(i) hereof furnished to Subject Agent are true and correct as of such Bring-Down Delivery Date as though made at and as of such date (except that such statements shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificate); provided, however, that the filing of a Current Report on Form 8-K will not constitute a Bring-Down Delivery Date unless (A) (x) such Current Report on Form 8-K is filed at any time during which either a Transaction Acceptance is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein) or a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or such Current Report on Form 8-K is filed at any time from and including the date of a Terms Agreement through and including the related Settlement Date and (y) the Subject Agent has reasonably requested that such date be deemed to be a Bring-Down Delivery Date based upon the event or events reported in such Current Report on Form 8-K, or (B) such Current Report on Form 8-K contains capsule financial information, historical or pro forma financial statements, supporting schedules or other financial data, including any Current Report on Form 8-K or part thereof under Item 2.02 of Regulation S-K of the Commission that is considered “filed” under the Exchange Act but, for the avoidance of doubt, excluding any Current Report on Form 8-K or any part thereof under Item 2.02 or 7.01 of such Regulation S-K that is “furnished” under the Exchange Act; and provided, further, that an amendment or supplement to the Registration Statement or the Prospectus providing solely for the determination of the terms of the Shares (other than Shares to be offered or sold pursuant to this Agreement or any Terms Agreement) or relating to the offering of other securities pursuant to the Registration Statement will not constitute a Bring-Down Delivery Date. (c) Each Bring-Down Delivery Date, the Company shall, unless the Subject Agent agrees otherwise, cause to be furnished to Subject Agent (A) the written opinion and, if not included in such opinion, negative assurance letter of Baker, Donelson, Bearman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, PC, counsel to the Company, each dated as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, dated and delivered on such Principal Settlement Date, of the same tenor as the opinion and letter referred to in Section 5(a)(ii) hereof, but modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such opinions and letter, or, in lieu of such opinion and letter, such counsel shall furnish the Subject Agent with a letter substantially to the effect that the Subject Agent may rely on the opinion and letter referred to in Section 5(a)(ii), furnished to the Subject Agent, to the same extent as though they were dated the date of such letter authorizing reliance (except that statements in such last opinion and letter shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such letters authorizing reliance). (d) Each Bring-Down Delivery Date, the Company shall, unless the Subject Agent agrees otherwise, cause each of Ernst & Young LLP to furnish to the Subject Agent a “comfort” letter, dated as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the respective letters referred to in Section 5(a)(iii) hereof, but modified to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the date of such letter, and, if the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall include or incorporate by reference the financial statements of any entity or business (other than the Company and its subsidiaries), or any properties or assets, the Company shall, if requested by the Subject Agent, cause a firm of independent public accountants to furnish to the Subject Agent a “comfort” letter, dated as of the applicable Bring-Down Delivery Date and delivered as promptly as practicable after the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, addressing such matters as the Subject Agent may reasonably request. (e) (i) No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Act shall be pending before or threatened by the Commission; the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); and all requests by the Commission for additional information shall have been complied with to the satisfaction of the Subject Agent and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes, shall have occurred and be in effect at the time the Company delivers a Transaction Proposal to the Subject Agent or the time the Subject Agent delivers a Transaction Acceptance to the Company; and (ii) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time the Company delivers a Transaction Proposal to the Subject Agent or the time the Subject Agent delivers a Transaction Acceptance to the Company. (f) The Company shall reasonably cooperate with any reasonable due diligence review requested by the Subject Agent or its counsel from time to time in connection with the transactions contemplated hereby or any Terms Agreement, including, without limitation, (i) at the commencement of each intended Purchase Date and any Time of Sale or Settlement Date, making available appropriate corporate officers of the Company and, upon reasonable request, representatives of Ernst & Young LLP and, as applicable, Deloitte and Touche LLP for an update on diligence matters with representatives of the Subject Agent and (ii) at each Bring-Down Delivery Date or otherwise as the Subject Agent may reasonably request, providing information and making available documents and appropriate corporate officers of the Company and representatives of Ernst & Young LLP and, as applicable, Deloitte and Touche LLP for one or more due diligence sessions with representatives of the Subject Agent and its counsel. (g) The Company shall disclose, in its Quarterly Reports on Form 10-Q and in its Annual Report on Form 10-K, the number of the Shares sold through the Agents under this Agreement, the Amended and Restated Alternative Distribution Agreements and any Terms Agreements and Alternative Terms Agreements, and the gross and net proceeds to the Company from the sale of the Shares during the relevant quarter or, in the case of an Annual Report on Form 10-K, during the fiscal year covered by such Annual Report and the fourth quarter of such fiscal year. All opinions, letters and other documents referred to in Sections 6(b) through (d) above shall be reasonably satisfactory in form and substance to the Subject Agent. The Subject Agent will provide the Company with such notice (which may be oral, and in such case, will be confirmed via e-mail as soon as reasonably practicable thereafter) as is reasonably practicable under the circumstances when requesting an opinion, letter or other document referred to in Sections 6(b) through (d) above.
Appears in 4 contracts
Sources: Distribution Agreement (Mid-America Apartments, L.P.), Distribution Agreement (Mid-America Apartments, L.P.), Distribution Agreement (Mid-America Apartments, L.P.)
Additional Covenants of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, further covenant and agree with the Subject Agent as follows:
(a) Each Transaction Proposal made by the Company that is accepted by the Subject Agent by means of a Transaction Acceptance and each execution and delivery by the Company of a Terms Agreement shall be deemed to be (i) an affirmation that the representations, warranties and agreements of the Company and the Operating Partnership herein contained and contained in any certificate delivered to the Subject Agent pursuant hereto are true and correct at such Time of Acceptance or the date of such Terms Agreement, as the case may be, and (ii) an undertaking that such representations, warranties and agreements will be true and correct on any applicable Time of Sale and Settlement Date, as though made at and as of each such time (it being understood that such representations, warranties and agreements shall relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of such Transaction Acceptance or Terms Agreement, as the case may be).
(b) Each time that (i) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall be amended or supplemented (including, except as noted in the proviso at the end of this Section 6(b), by the filing of any Incorporated Document), (ii) there is a Principal Settlement Date pursuant to a Terms Agreement, or (iii) otherwise as the Subject Agent shall reasonably request (provided that the Company may decline to comply with any request pursuant to this clause (iii) unless such request is delivered at any time (I) during which a Transaction Acceptance is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein), (II) during which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or (III) during any period beginning on and including the first day of a Terms Agreement through and including the related Settlement Date) (each date referred to clauses (i), (ii) and (iii) above, a “Bring-Down Delivery Date”), the Company shall, unless the Subject Agent agrees otherwise, furnish or cause to be furnished to the Subject Agent a certificatecertificates, dated as of such Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the certificate certificates referred to in Section Sections 5(a)(i) and 5(a)(iv) hereof, modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificates and, in the case of the Chief Financial Officer’s certificate, covering such additional historical and pro forma financial statements, if any, and other financial, numerical and statistical data that is not covered by the accountants’ “comfort” letter dated as of such Bring-Down Delivery Date as the Subject Agent may reasonably request, or, in lieu of such certificatecertificates, a certificate certificates to the effect that the statements contained in the certificate certificates referred to in Section Sections 5(a)(i) and, unless the Subject Agent shall have requested that the Chief Financial Officers’ certificate cover additional data as aforesaid, 5(a)(iv) hereof furnished to Subject Agent are true and correct as of such Bring-Down Delivery Date as though made at and as of such date (except that such statements shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificate); provided, however, that the filing of a Current Report on Form 8-K will not constitute a Bring-Down Delivery Date unless (A) (x) such Current Report on Form 8-K is filed at any time during which either a Transaction Acceptance is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein) or a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or such Current Report on Form 8-K is filed at any time from and including the date of a Terms Agreement through and including the related Settlement Date and (y) the Subject Agent has reasonably requested that such date be deemed to be a Bring-Down Delivery Date based upon the event or events reported in such Current Report on Form 8-K, or (B) such Current Report on Form 8-K contains capsule financial information, historical or pro forma financial statements, supporting schedules or other financial data, including any Current Report on Form 8-K or part thereof under Item 2.02 of Regulation S-K of the Commission that is considered “filed” under the Exchange Act but, for the avoidance of doubt, excluding any Current Report on Form 8-K or any part thereof under Item 2.02 or 7.01 of such Regulation S-K that is “furnished” under the Exchange Act; and provided, further, that an amendment or supplement to the Registration Statement or the Prospectus providing solely for the determination of the terms of the Shares (other than Shares to be offered or sold pursuant to this Agreement or any Terms Agreement) or relating to the offering of other securities pursuant to the Registration Statement will not constitute a Bring-Down Delivery Date.
(c) Each Bring-Down Delivery Date, the Company shall, unless the Subject Agent agrees otherwise, cause to be furnished to Subject Agent (A) the written opinion and, if not included in such opinion, negative assurance letter of Baker, Donelson, Bearman, ▇C▇▇▇▇▇▇▇ & ▇B▇▇▇▇▇▇▇▇, PC, counsel to the Company, each dated as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, dated and delivered on such Principal Settlement Date, of the same tenor as the opinion and letter referred to in Section 5(a)(ii) hereof, but modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such opinions and letter, or, in lieu of such opinion and letter, such counsel shall furnish the Subject Agent with a letter substantially to the effect that the Subject Agent may rely on the opinion and letter referred to in Section 5(a)(ii), furnished to the Subject Agent, to the same extent as though they were dated the date of such letter authorizing reliance (except that statements in such last opinion and letter shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such letters authorizing reliance).
(d) Each Bring-Down Delivery Date, the Company shall, unless the Subject Agent agrees otherwise, cause each of Ernst & Young LLP to furnish to the Subject Agent a “comfort” letter, dated as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the respective letters letter referred to in Section 5(a)(iii) hereof, but modified to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the date of such letter, and, if the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall include or incorporate by reference the financial statements of any entity or business (other than the Company and its subsidiaries), or any properties or assets, the Company shall, if requested by the Subject Agent, cause a firm of independent public accountants to furnish to the Subject Agent a “comfort” letter, dated as of the applicable Bring-Down Delivery Date and delivered as promptly as practicable after the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, addressing such matters as the Subject Agent may reasonably request.
(e) (i) No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Act shall be pending before or threatened by the Commission; the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); and all requests by the Commission for additional information shall have been complied with to the satisfaction of the Subject Agent and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes, shall have occurred and be in effect at the time the Company delivers a Transaction Proposal to the Subject Agent or the time the Subject Agent delivers a Transaction Acceptance to the Company; and (ii) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time the Company delivers a Transaction Proposal to the Subject Agent or the time the Subject Agent delivers a Transaction Acceptance to the Company.
(f) The Company shall reasonably cooperate with any reasonable due diligence review requested by the Subject Agent or its counsel from time to time in connection with the transactions contemplated hereby or any Terms Agreement, including, without limitation, (i) at the commencement of each intended Purchase Date and any Time of Sale or Settlement Date, making available appropriate corporate officers of the Company and, upon reasonable request, representatives of Ernst & Young LLP and, as applicable, Deloitte and Touche LLP for an update on diligence matters with representatives of the Subject Agent and (ii) at each Bring-Down Delivery Date or otherwise as the Subject Agent may reasonably request, providing information and making available documents and appropriate corporate officers of the Company and representatives of Ernst & Young LLP and, as applicable, Deloitte and Touche LLP for one or more due diligence sessions with representatives of the Subject Agent and its counsel.
(g) The Company shall disclose, in its Quarterly Reports quarterly reports on Form 10-Q and in its Annual Report annual report on Form 10-K, the number of the Shares sold through the Agents under this Agreement, the Amended and Restated Alternative Distribution Agreements and any Terms Agreements and Alternative Terms Agreements, and the gross and net proceeds to the Company from the sale of the Shares during the relevant quarter or, in the case of an Annual Report on Form 10-K, during the fiscal year covered by such Annual Report and the fourth quarter of such fiscal year. All opinions, letters and other documents referred to in Sections 6(b) through (d) above shall be reasonably satisfactory in form and substance to the Subject Agent. The Subject Agent will provide the Company with such notice (which may be oral, and in such case, will be confirmed via e-mail as soon as reasonably practicable thereafter) as is reasonably practicable under the circumstances when requesting an opinion, letter or other document referred to in Sections 6(b) through (d) above.
Appears in 4 contracts
Sources: Distribution Agreement (Mid America Apartment Communities Inc), Distribution Agreement (Mid America Apartment Communities Inc), Distribution Agreement (Mid America Apartment Communities Inc)
Additional Covenants of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, further covenant and agree with the Subject Agent as follows:
(a) Each Transaction Proposal made by the Company that is accepted by the Subject Agent by means of a Transaction Acceptance and each execution and delivery by the Company of a Terms Agreement shall be deemed to be (i) an affirmation that the representations, warranties and agreements of the Company and the Operating Partnership herein contained and contained in any certificate delivered to the Subject Agent pursuant hereto are true and correct at such Time of Acceptance or the date of such Terms Agreement, as the case may be, and (ii) an undertaking that such representations, warranties and agreements will be true and correct on any applicable Time of Sale and Settlement Date, as though made at and as of each such time (it being understood that such representations, warranties and agreements shall relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of such Transaction Acceptance or Terms Agreement, as the case may be).
(b) Each time that (i) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall be amended or supplemented (including, except as noted in the proviso at the end of this Section 6(b), by the filing of any Incorporated Document), (ii) there is a Principal Settlement Date pursuant to a Terms Agreement, or (iii) otherwise as the Subject Agent shall reasonably request (provided that the Company may decline to comply with any request pursuant to this clause (iii) unless such request is delivered at any time (I) during which a Transaction Acceptance is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein), (II) during which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or (III) during any period beginning on and including the first day of a Terms Agreement through and including the related Settlement Date) (each date referred to clauses (i), (ii) and (iii) above, a “Bring-Down Delivery Date”), the Company shall, unless the Subject Agent agrees otherwise, furnish or cause to be furnished to the Subject Agent a certificate, dated as of such Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the certificate referred to in Section 5(a)(i) hereof, modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificates or, in lieu of such certificate, a certificate to the effect that the statements contained in the certificate referred to in Section 5(a)(i) hereof furnished to Subject Agent are true and correct as of such Bring-Down Delivery Date as though made at and as of such date (except that such statements shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificate); provided, however, that the filing of a Current Report on Form 8-K will not constitute a Bring-Down Delivery Date unless (A) (x) such Current Report on Form 8-K is filed at any time during which either a Transaction Acceptance is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein) or a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or such Current Report on Form 8-K is filed at any time from and including the date of a Terms Agreement through and including the related Settlement Date and (y) the Subject Agent has reasonably requested that such date be deemed to be a Bring-Down Delivery Date based upon the event or events reported in such Current Report on Form 8-K, or (B) such Current Report on Form 8-K contains capsule financial information, historical or pro forma financial statements, supporting schedules or other financial data, including any Current Report on Form 8-K or part thereof under Item 2.02 of Regulation S-K of the Commission that is considered “filed” under the Exchange Act but, for the avoidance of doubt, excluding any Current Report on Form 8-K or any part thereof under Item 2.02 or 7.01 of such Regulation S-K that is “furnished” under the Exchange Act; and provided, further, that an amendment or supplement to the Registration Statement or the Prospectus providing solely for the determination of the terms of the Shares (other than Shares to be offered or sold pursuant to this Agreement or any Terms Agreement) or relating to the offering of other securities pursuant to the Registration Statement will not constitute a Bring-Down Delivery Date.
(c) Each Bring-Down Delivery Date, the Company shall, unless the Subject Agent agrees otherwise, cause to be furnished to Subject Agent (A) the written opinion and, if not included in such opinion, negative assurance letter of Baker, Donelson, Bearman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, PC, counsel to the Company, each dated as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, dated and delivered on such Principal Settlement Date, of the same tenor as the opinion and letter referred to in Section 5(a)(ii) hereof, but modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such opinions and letter, or, in lieu of such opinion and letter, such counsel shall furnish the Subject Agent with a letter substantially to the effect that the Subject Agent may rely on the opinion and letter referred to in Section 5(a)(ii), furnished to the Subject Agent, to the same extent as though they were dated the date of such letter authorizing reliance (except that statements in such last opinion and letter shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such letters authorizing reliance).
(d) Each Bring-Down Delivery Date, the Company shall, unless the Subject Agent agrees otherwise, cause each of Ernst & Young LLP to furnish to the Subject Agent a “comfort” letter, dated as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the respective letters referred to in Section 5(a)(iii) hereof, but modified to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the date of such letter, and, if the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall include or incorporate by reference the financial statements of any entity or business (other than the Company and its subsidiaries), or any properties or assets, the Company shall, if requested by the Subject Agent, cause a firm of independent public accountants to furnish to the Subject Agent a “comfort” letter, dated as of the applicable Bring-Down Delivery Date and delivered as promptly as practicable after the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, addressing such matters as the Subject Agent may reasonably request.
(e) (i) No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Act shall be pending before or threatened by the Commission; the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); and all requests by the Commission for additional information shall have been complied with to the satisfaction of the Subject Agent and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes, shall have occurred and be in effect at the time the Company delivers a Transaction Proposal to the Subject Agent or the time the Subject Agent delivers a Transaction Acceptance to the Company; and (ii) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time the Company delivers a Transaction Proposal to the Subject Agent or the time the Subject Agent delivers a Transaction Acceptance to the Company.
(f) The Company shall reasonably cooperate with any reasonable due diligence review requested by the Subject Agent or its counsel from time to time in connection with the transactions contemplated hereby or any Terms Agreement, including, without limitation, (i) at the commencement of each intended Purchase Date and any Time of Sale or Settlement Date, making available appropriate corporate officers of the Company and, upon reasonable request, representatives of Ernst & Young LLP and, as applicable, Deloitte and Touche LLP for an update on diligence matters with representatives of the Subject Agent and (ii) at each Bring-Down Delivery Date or otherwise as the Subject Agent may reasonably request, providing information and making available documents and appropriate corporate officers of the Company and representatives of Ernst & Young LLP and, as applicable, Deloitte and Touche LLP for one or more due diligence sessions with representatives of the Subject Agent and its counsel.
(g) The Company shall disclose, in its Quarterly Reports on Form 10-Q and in its Annual Report on Form 10-K, the number of the Shares sold through the Agents under this Agreement, the Amended and Restated Alternative Distribution Agreements and any Terms Agreements and Alternative Terms Agreements, and the gross and net proceeds to the Company from the sale of the Shares during the relevant quarter or, in the case of an Annual Report on Form 10-K, during the fiscal year covered by such Annual Report and the fourth quarter of such fiscal year. All opinions, letters and other documents referred to in Sections 6(b) through (d) above shall be reasonably satisfactory in form and substance to the Subject Agent. The Subject Agent will provide the Company with such notice (which may be oral, and in such case, will be confirmed via e-mail as soon as reasonably practicable thereafter) as is reasonably practicable under the circumstances when requesting an opinion, letter or other document referred to in Sections 6(b) through (d) above.
Appears in 3 contracts
Sources: Distribution Agreement (Mid-America Apartments, L.P.), Distribution Agreement (Mid-America Apartments, L.P.), Distribution Agreement (Mid-America Apartments, L.P.)
Additional Covenants of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, further covenant and agree with the Subject Agent Agent, the Forward Seller and the Forward Purchaser as follows:
(a) Each acceptance of a Transaction Proposal made Notice or provision of a Placement Notice (or Forward Acceptance, as the case may be) by the Company that is accepted by the Subject Agent by means of a Transaction Acceptance and each execution and delivery by the Company of a Terms Agreement shall be deemed to be (i) an affirmation that the representations, warranties and agreements of the Company and the Operating Partnership herein contained and contained in any certificate delivered to the Subject Agent Agent, the Forward Seller and the Forward Purchaser pursuant hereto are true and correct at such Time of Acceptance or the date of such Terms Agreement, as the case may be, and (ii) an undertaking that such representations, warranties and agreements will be true and correct on any applicable Time of Sale and Settlement Date, as though made at and as of each such time (it being understood that such representations, warranties and agreements shall relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of such Transaction Acceptance or Notice, Terms Agreement, Placement Notice or Forward Acceptance, as the case may be).
(b) Each time that (i) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall be amended or supplemented (including, except as noted in the proviso at the end of this Section 6(b), by the filing of any Incorporated Document), (ii) there is a Principal Settlement Date pursuant to a Terms Agreement, or (iii) otherwise as the Subject Agent Agent, the Forward Seller or the Forward Purchaser shall reasonably request (request, provided that the Company may decline to comply with any Subject Agent, the Forward Seller or the Forward Purchaser shall not make such a request pursuant to this clause (iii) unless such request is delivered at any time (I) during which a Transaction Acceptance is binding and periods that the Company has is not suspended the use thereof (and prior proposing Agency Transactions to the settlement of the Shares specified therein), (II) during which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act Subject Agent or any similar rule) Alternative Agent or (III) during any period beginning on and including the first day of a Terms Agreement through and including the related Settlement Date) Forward Hedge Selling Period (each date referred to clauses (i), (ii) and (iii) above, a “Bring-Down Delivery Date”), the Company shall, unless the Subject Agent or Forward Seller, as applicable, agrees otherwise, furnish or cause to be furnished to the Subject Agent or the Forward Seller, as applicable, a certificate, dated as of such Bring-Down Delivery Date and delivered within three Exchange Business Days as of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the certificate referred to in Section 5(a)(i(a)(i) hereof, modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificates certificate, or, in lieu of such certificate, a certificate to the effect that the statements contained in the certificate referred to in Section 5(a)(i) hereof furnished to the Subject Agent or Forward Seller, as applicable, are true and correct as of such Bring-Down Delivery Date as though made at and as of such date (except that such statements shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificate); provided, however, that the filing of a Current Report on Form 8-K will not constitute a Bring-Down Delivery Date unless (A) (x) such Current Report on Form 8-K is filed at any time during which either a Transaction Acceptance Notice or Placement Notice is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein) or a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or such Current Report on Form 8-K is filed at any time from and including the date of a Terms Agreement through and including the related Settlement Date and (y) the Subject Agent or any Alternative Agent has reasonably requested that such date be deemed to be a Bring-Down Delivery Date based upon the reasonable judgment of the Subject Agent or such Alternative Agent that the event or events reported in such Current Report on Form 8-KK has a Material Adverse Effect on the condition, financial or otherwise, or the earnings, assets or business affairs or prospects of the Operating Partnership, Company and their Subsidiaries, taken as a whole, or on the in service properties owned, directly or indirectly, by the Company taken as a whole at such time, or otherwise restates historical financial statements or contains financial statements required by Rules 3-05 or 3-14 of Regulation S-X or (B) such Current Report on Form 8-K contains capsule financial information, historical or pro forma financial statements, supporting schedules or other financial data, including any Current Report on Form 8-K or part thereof under Item 2.02 of Regulation S-K of the Commission that is considered “filed” under the Exchange Act but, for the avoidance of doubt, excluding any Current Report on Form 8-K or any part thereof under Item 2.02 or 7.01 of such Regulation S-K that is “furnished” under the Exchange Act; and provided, further, that an amendment or supplement to the Registration Statement or the Prospectus providing solely for the determination of the terms of the Shares (other than Shares to be offered or sold required pursuant to this Agreement or any Terms Agreement) or relating Section 2(i). Notwithstanding the foregoing, if the Company subsequently decides to the offering of other securities pursuant to the Registration Statement will not constitute sell Shares following a Bring-Down Delivery DateDate when the Company did not furnish or cause to be furnished to the Subject Agent and each of the Alternative Agents a certificate under this Section 6(b) and Section 6(b) of the Alternative Sales Agreements, then before the Company delivers a Transaction Notice or the Subject Agent or any of the Alternative Agents conducts any sales pursuant to this Agreement, any Terms Agreement, any Alternative Distribution Agreement or any Alternative Terms Agreement, the Company shall first furnish or cause to be furnished to the Subject Agent such certificate under this Section 6(b), dated the date of the Sales Notice.
(c) Each Bring-Down Delivery Date, the Company shall, unless the Subject Agent agrees Agent, the Forward Seller and the Forward Purchaser each agree otherwise, cause to be furnished to the Subject Agent Agent, the Forward Seller and the Forward Purchaser (A) the written opinion and, if not included in such opinion, opinions and negative assurance letter of Baker, Donelson, Bearman, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ LLP, PCcounsel to the Company and of McGuireWoods LLP, special Maryland counsel to the Company, each dated and delivered as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, dated and delivered on such Principal Settlement Date, of the same tenor as the opinion opinions and letter referred to in Section Sections 5(a)(ii) and 5(a)(iii) hereof, respectively, but modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such opinions and letter, or, in lieu of such opinion opinions and letter, such counsel and Maryland counsel shall furnish the Subject Agent Agent, the Forward Seller and the Forward Purchaser with a letter letters substantially to the effect that the Subject Agent Agent, the Forward Seller and the Forward Purchaser may rely on the opinion opinions and letter referred to in Section Sections 5(a)(ii) and 5(a)(iii), furnished to the Subject Agent, the Forward Seller and the Forward Purchaser, to the same extent as though they were dated the date of such letter letters authorizing reliance (except that statements in such last opinion and letter opinions shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such letters authorizing reliance). Notwithstanding the foregoing, if the Company subsequently decides to sell Shares following a Bring-Down Delivery Date when the Company did not furnish or cause to be furnished to the Subject Agent, the Forward Seller, the Forward Purchaser and each of the Alternative Agents the opinions and letter under this Section 6(c) and Section 6(c) of the Alternative Sales Agreements, then before the Company delivers a Transaction Notice or the Subject Agent or any of the Alternative Agents conducts any sales pursuant to this Agreement, any Terms Agreement, any Placement Notice (or Forward Acceptance, as the case may be), any Alternative Distribution Agreement or any Alternative Terms Agreement, the Company shall first furnish or cause to be furnished to the Subject Agent, the Forward Seller and the Forward Purchaser such opinions and letter under this Section 6(c), dated the date of the Sales Notice.
(d) Each Bring-Down Delivery Date, the Company shall, unless the Subject Agent agrees Agent, the Forward Seller and the Forward Purchaser each agree otherwise, cause each of Ernst & Young PricewatershouseCoopers LLP to furnish to the Subject Agent Agent, the Forward Seller and the Forward Purchaser a “comfort” letter, dated and delivered as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the respective letters letter referred to in Section 5(a)(iii5(a)(iv) hereof, but modified to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the date of such letter, and. Notwithstanding the foregoing, if the Company subsequently decides to sell Shares following a Bring-Down Delivery Date when the Company did not furnish or cause to be furnished to the Subject Agent, the Forward Seller and the Forward Purchaser the “comfort” letter under this Section 6(d), then before the Company delivers a Transaction Notice or Placement Notice (or Forward Acceptance, as the case may be) or the Subject Agent, the Forward Seller and the Forward Purchaser conducts any sales pursuant to this Agreement, any Terms Agreement, any Placement Notice (or Forward Acceptance, as the case may be), any Alternative Distribution Agreement or any Alternative Terms Agreement, the Company shall first furnish or cause to be furnished to the Subject Agent, the Forward Seller and the Forward Purchaser such “comfort” letter under this Section 6(d), dated the date of the Sales Notice.
(e) Each Bring-Down Delivery Date, the Subject Agent, the Forward Seller and the Forward Purchaser may request an opinion and negative assurance letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Subject Agent, the Forward Seller and the Forward Purchaser, addressed to the Subject Agent, the Forward Seller and the Forward Purchaser, dated and delivered as of the applicable Bring-Down Delivery Date, of the same tenor as the opinion and negative assurance letter referred to in Section 5(b) hereof, but modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such opinion and letter, or, in lieu of such opinion and letter, such counsel shall include or incorporate by reference the financial statements of any entity or business (other than the Company and its subsidiaries), or any properties or assets, the Company shall, if requested by furnish the Subject Agent, cause the Forward Seller and the Forward Purchaser with a firm of independent public accountants letter substantially to furnish the effect that the Subject Agent, the Forward Seller and the Forward Purchaser may rely on the opinion and letter referred to in Sections 5(b), furnished to the Subject Agent a “comfort” letterAgent, the Forward Seller and the Forward Purchaser, to the same extent as though they were dated the date of such letter authorizing reliance (except that statements in such last opinion shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of the applicable Bring-Down Delivery Date and delivered as promptly as practicable after the applicable Bring-Down Delivery Date or, in the case delivery of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, addressing such matters as the Subject Agent may reasonably requestletter authorizing reliance).
(e) (i) No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Act shall be pending before or threatened by the CommissionCommission at the time the Company accepts a Transaction Notice; the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); and all requests by the Commission for additional information shall have been complied with to the satisfaction of the Subject Agent Agent, the Forward Seller and the Forward Purchaser and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes, shall will have occurred and be in effect at the time the Company accepts a Transaction Notice or delivers a Transaction Proposal Placement Notice (or Forward Acceptance, as the case may be) to the Subject Agent or Forward Seller and the time the Subject Agent delivers a Transaction Acceptance to the Company; Forward Purchaser and (ii) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time the Company accepts a Transaction Notice or delivers a Transaction Proposal to Placement Notice (or Forward Acceptance, as the Subject Agent or the time the Subject Agent delivers a Transaction Acceptance to the Companycase may be).
(fg) The Company shall reasonably cooperate with any reasonable due diligence review requested by the Subject Agent Agent, the Forward Seller or its counsel the Forward Purchaser, or their respective counsel, from time to time in connection with the transactions contemplated hereby or any Terms Agreement, including, without limitation, (i) at the commencement of each intended Purchase Date and any Time of Sale or Settlement Date, making available appropriate corporate officers of the Company and, upon reasonable request, representatives of Ernst & Young LLP and, as applicable, Deloitte and Touche PricewatershouseCoopers LLP for an update on diligence matters with representatives of the Subject Agent Agent, the Forward Seller and the Forward Purchaser and (ii) at each Bring-Down Delivery Date (including at such times as set forth in the final sentence of each of Sections 6(b) through (d)) or otherwise as the Subject Agent Agent, the Forward Seller and the Forward Purchaser may reasonably request, providing information and making available documents and appropriate corporate officers of the Company and representatives of Ernst & Young LLP and, as applicable, Deloitte and Touche PricewatershouseCoopers LLP for one or more due diligence sessions with representatives of the Subject Agent Agent, the Forward Seller and its the Forward Purchaser and their respective counsel.
(gh) The Company shall disclose, in its Quarterly Reports quarterly reports on Form 10-Q and Q, in its Annual Report annual report on Form 10-KK and, if requested by the Subject Agent, in prospectus supplements to be filed by the Company from time to time, the number of the Shares sold through the Agents under this Agreement and any Terms Agreement, the Amended and Restated Alternative Distribution Agreements and any Terms Agreements and Alternative Terms Agreements, and the gross and net proceeds to the Company from the sale of the Shares and the compensation paid by the Company with respect to sales of the Shares pursuant to this Agreement during the relevant quarter oror such shorter period determined by the Company, in as the case of an Annual Report on Form 10-K, during the fiscal year covered by such Annual Report and the fourth quarter of such fiscal yearmay be. All opinions, letters and other documents referred to in Sections 6(b) through (de) above shall be reasonably satisfactory in form and substance to the Subject Agent, the Forward Seller and the Forward Purchaser. The Subject Agent Agent, the Forward Seller and the Forward Purchaser will provide the Company with such notice (which may be oral, and in such case, will be confirmed via e-mail or facsimile as soon as reasonably practicable thereafter) as is reasonably practicable under the circumstances when requesting an opinion, letter or other document referred to in Sections 6(b) through (de) above.
Appears in 2 contracts
Sources: Equity Distribution Agreement (First Industrial Lp), Equity Distribution Agreement (First Industrial Lp)
Additional Covenants of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, Partnership further covenant and agree with the Subject Agent Agent, the Forward Seller and the Forward Purchaser as follows:
(a) Each Transaction Proposal made by the Company that is accepted by the Subject Agent Agent, the Forward Seller or the Forward Purchaser by means of a Transaction Acceptance and each execution and delivery by the Company of a Terms Agreement shall be deemed to be (i) an affirmation that the representations, warranties and agreements of the Company and the Operating Partnership herein contained and contained in any certificate delivered to the Subject Agent Agent, the Forward Seller and the Forward Purchaser pursuant hereto are true and correct at such Time of Acceptance or the date of such Terms Agreement, as the case may be, and (ii) an undertaking that such representations, warranties and agreements will be true and correct on any applicable Time of Sale and Settlement Date, as though made at and as of each such time (it being understood that such representations, warranties and agreements shall relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of such Transaction Acceptance or Terms Agreement, as the case may be).
(b) Each time that (i) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall be amended or supplemented (including, except as noted in the proviso at the end of this Section 6(b), by the filing of any Incorporated Document), (ii) there is a Principal Settlement Date pursuant to a Terms Agreement, or (iii) otherwise as the Subject Agent Agent, the Forward Seller or the Forward Purchaser shall reasonably request (provided that the Company may decline to comply with any request pursuant to this clause (iii) unless such request is delivered at any time (I) during which a Transaction Acceptance is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein), (II) during which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or (III) during any period beginning on and including the first day of a Terms Agreement through and including the related Settlement Date) (each date referred to clauses (i), (ii) and (iii) above, a “Bring-Down Delivery Date”), the Company shall, unless the Subject Agent Agent, the Forward Seller and the Forward Purchaser agrees otherwise, furnish or cause to be furnished to the Subject Agent a certificateAgent, the Forward Seller and the Forward Purchaser certificates, dated as of such Bring-Down Delivery Date and delivered within three one Exchange Business Days of Day after the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the certificate certificates referred to in Section 5(a)(i), Section 5(a)(iv) and 5(a)(v) hereof, modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificates and, in the case of the Chief Financial Officer’s certificate, covering such other financial, numerical and statistical data that is not covered by the accountants’ “comfort” letter dated as of such Bring-Down Delivery Date as the Agent, the Forward Seller or the Forward Purchaser may reasonably request, or, in lieu of such certificatecertificates, a certificate certificates to the effect that the statements contained in the certificate certificates referred to in Section Sections 5(a)(i), 5(a)(v) and, unless the Agent, the Forward Seller or the Forward Purchaser shall have requested that the Chief Financial Officer’s certificate cover different or additional date as aforesaid, 5(a)(iv) hereof furnished to Subject Agent are true and correct as of such Bring-Down Delivery Date as though made at and as of such date (except that such statements shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificate); provided, however, that the filing of a Current Report on Form 8-K will not constitute a Bring-Down Delivery Date under clause (i) above unless either (A) (x) such Current Report on Form 8-K is filed at any time during which either a Transaction Acceptance is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein) or a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or such Current Report on Form 8-K is filed at any time from and including the date of a Terms Agreement through and including the related Settlement Date and (y) the Subject Agent Agent, the Forward Seller or the Forward Purchaser has reasonably requested that such date be deemed to be a Bring-Down Delivery Date based upon the event or events reported in such Current Report on Form 8-K, K or (B) such Current Report on Form 8-K contains capsule financial information, historical or pro forma financial statements, supporting schedules or other financial data, including any Current Report on Form 8-K or part thereof under Item 2.02 of Regulation S-K of the Commission that is considered “filed” under the Exchange Act but, for the avoidance of doubt, excluding any Current Report on Form 8-K or any part thereof under Item 2.02 or 7.01 of such Regulation S-K that is “furnished” under the Exchange Act; and provided, further, that an amendment or supplement to the Registration Statement or the Prospectus providing solely for the determination of the terms of the Shares (other than Shares to be offered or sold pursuant to this Agreement or any Terms Agreement) or relating to the offering of other securities pursuant to the Registration Statement will not constitute a Bring-Down Delivery Date; and provided, further, that the requirement to provide the certificates under this Section 6(b) shall be waived for any Bring-Down Delivery Date occurring at a time at which no Transaction Proposal is pending, which waiver shall continue until the earlier to occur of the date the Company delivers a Transaction Proposal hereunder (which for such calendar quarter shall be considered a Bring-Down Delivery Date) and the next occurring Bring-Down Delivery Date. Notwithstanding the foregoing, if the Company subsequently decides to sell Shares following a Bring-Down Delivery Date when the Company relied on such waiver and did not provide the Agent, the Forward Seller or the Forward Purchaser with the certificates under this Section 6(b), then before the Company delivers the Transaction Proposal or the Agent, the Forward Seller or the Forward Purchaser sells any Shares, the Company shall provide the Agents with the certificates under this Section 6(b), dated the date of the Transaction Proposal. The obligation of the Company under this Section 6(b) shall be deferred for any period during which the sale of Shares has been suspended or terminated pursuant to the terms of this Agreement and shall recommence upon the termination of such period.
(c) Each Bring-Down Delivery DateOn each date on which the Company is required to deliver the certificates under Section 6(b), the Company shall, unless the Subject Agent agrees Agent, the Forward Seller and the Forward Purchaser agree otherwise, cause to be furnished to Subject Agent the Agent, the Forward Seller and the Forward Purchaser (Ai)(A) the written opinion and, if not included in such legal opinion, tax opinion and negative assurance letter of Baker, Donelson, Bearman, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, PC▇ LLP, counsel to the CompanyCompany and (B) the written legal opinion of ▇▇▇▇▇▇▇ LLP, Maryland counsel to the Company and (ii) the written legal opinion and negative assurance letter of ▇▇▇▇▇▇▇ Procter LLP, counsel to the Agents, each dated as of the applicable Bring-Down Delivery Date and delivered within three one Exchange Business Days of Day after the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, dated and delivered on such Principal Settlement Date, of the same tenor as the opinion opinions and letter letters referred to in Section 5(a)(ii) or Section 5(b) hereof, as applicable, but modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such opinions and letterletters, or, in lieu of such opinion opinions and letterletters, each such counsel shall furnish the Subject Agent Agent, the Forward Seller and the Forward Purchaser with a letter substantially to the effect that the Subject Agent Agent, the Forward Seller and the Forward Purchaser may rely on the opinion and letter of such counsel referred to in Section 5(a)(ii) or Section 5(b), as applicable, furnished to the Subject Agent, the Forward Seller and the Forward Purchaser, to the same extent as though they were dated the date of such letter authorizing reliance (except that statements in such last opinion and letter of such counsel shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such letters authorizing reliance).
(d) Each Bring-Down Delivery DateOn each date on which the Company is required to deliver the certificates under Section 6(b), the Company shall, unless the Subject Agent agrees Agent, the Forward Seller and the Forward Purchaser agree otherwise, cause each of (i) Deloitte & Touche LLP and (ii) Ernst & Young LLP to furnish to the Subject Agent Agent, the Forward Seller and the Forward Purchaser a “comfort” letter, dated as of the applicable Bring-Down Delivery Date and delivered within three one Exchange Business Days of Day after the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the respective letters referred to in Section 5(a)(iii) hereof, but modified to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the date of such letter, and, if the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall include or incorporate by reference the financial statements of any entity or business (other than the consolidated financial statements of the Company and its subsidiaries), or any properties or assets, the Company shall, if requested by the Subject Agent, the Forward Seller and the Forward Purchaser, cause a firm of independent public accountants to furnish to the Subject Agent Agent, the Forward Seller and the Forward Purchaser a “comfort” letter, dated as of the applicable Bring-Down Delivery Date and delivered as promptly as practicable within one Exchange Business Day after the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, addressing such matters as the Subject Agent Agent, the Forward Seller and the Forward Purchaser may reasonably request.
(e) (i) No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Act shall be pending before or threatened by the Commission; the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); and all requests by the Commission for additional information shall have been complied with to the satisfaction of the Subject Agent Agent, the Forward Seller and the Forward Purchaser and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes, shall have occurred and be in effect at the time the Company delivers a Transaction Proposal to the Subject Agent or the Forward Seller and the Forward Purchaser or the time the Subject Agent or the Forward Seller and the Forward Purchaser delivers a Transaction Acceptance to the Company; and (ii) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time the Company delivers a Transaction Proposal to the Subject Agent or the Forward Seller and the Forward Purchaser or the time the Subject Agent or the Forward Seller and the Forward Purchaser delivers a Transaction Acceptance to the Company.
(f) The Company shall reasonably cooperate with any reasonable due diligence review requested by the Subject Agent Agent, the Forward Seller or its the Forward Purchaser or their counsel from time to time in connection with the transactions contemplated hereby or any Terms Agreement, including, without limitation, (i) at the commencement of each intended Purchase Date or Forward Hedge Selling Period and any Time of Sale or Settlement Date, providing information and making available appropriate documents and appropriate corporate officers of the Company and, upon reasonable request, representatives of each of Deloitte & Touche LLP and Ernst & Young LLP (and, as applicableif the Registration Statement, Deloitte the Prospectus or any Permitted Free-Writing Prospectus shall include or incorporate by reference the financial statements of any entity or business (other than the consolidated financial statements of the Company and Touche LLP its subsidiaries), representatives of the independent public accountants that audited or reviewed such financial statements) for an update on diligence matters with representatives of the Subject Agent Agent, the Forward Seller and the Forward Purchaser and (ii) at each Bring-Down Delivery Date or and otherwise as the Subject Agent Agent, the Forward Seller or the Forward Purchaser may reasonably request, providing information and making available documents and appropriate corporate officers of the Company and representatives of each of Deloitte & Touche LLP and Ernst & Young LLP (and, as applicableif the Registration Statement, Deloitte the Prospectus or any Permitted Free-Writing Prospectus shall include or incorporate by reference the financial statements of any entity or business (other than the consolidated financial statements of the Company and Touche LLP its subsidiaries), representatives of the independent public accountants that audited or reviewed such financial statements) for one or more due diligence sessions with representatives of the Subject Agent Agent, the Forward Seller and its the Forward Purchaser and their counsel.
(g) The Company shall disclose, in its Quarterly Reports quarterly reports on Form 10-Q and in its Annual Report annual report on Form 10-KK and, if requested by the Agent, in supplements to the Prospectus to be filed by the Company with the Commission from time to time, the number of the Shares sold through the Agents Agent and the Forward Seller under this Agreement, the Amended and Restated Alternative Distribution Agreements Agreement and any Terms Agreements and Alternative Terms AgreementsAgreement, and the gross and net proceeds to the Company from the sale of the Shares and the compensation paid by the Company with respect to sales of the Shares pursuant to this Agreement during the relevant quarter or, in the case of any such prospectus supplement, such shorter period as the Agent may reasonably request or, in the case of an Annual Report on Form 10-K, during the fiscal year covered by such Annual Report and the fourth quarter of such fiscal year. All opinions, letters and other documents referred to in Sections 6(b) through (d) above shall be reasonably satisfactory in form and substance to the Subject Agent, the Forward Seller and the Forward Purchaser. The Subject Agent Agent, the Forward Seller and the Forward Purchaser will provide the Company with such notice (which may be oral, and in such case, will be confirmed via e-mail as soon as reasonably practicable thereafter) as is reasonably practicable under the circumstances when requesting an opinion, letter or other document referred to in Sections 6(b) through (d) above.
Appears in 1 contract
Additional Covenants of the Company and the Operating Partnership. The Each of the Company and the Operating Partnership, jointly and severally, further covenant covenants and agree agrees with each of the Subject Agent Agents as follows:
(a) a. Each Transaction Proposal made by the Company that is accepted by the Subject an Agent by means of a Transaction Acceptance and each execution and delivery by the Company and the Operating Partnership of a Terms Agreement shall be deemed to be (i) an affirmation that the representations, warranties and agreements of the Company and the Operating Partnership herein contained and contained in any certificate delivered to the Subject such Agent pursuant hereto are true and correct at such Time of Acceptance or the date of such Terms Agreement, as the case may be, and (ii) an undertaking that such representations, warranties and agreements will be true and correct on any applicable Time of Sale and Settlement Date, as though made at and as of each such time (it being understood that such representations, warranties and agreements shall relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to at the time of such Transaction Acceptance or Terms Agreement, as the case may be).
(b) b. Each time that (i) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall be amended or supplemented (including, except as noted in the proviso at the end of this Section 6(b), by the filing of any Incorporated Document), (ii) there is a Principal Settlement Date pursuant to a Terms Agreement, or (iii) otherwise as the Subject Agent Agents shall reasonably request (request, provided that the Company may decline to comply with any Agent shall not make such a request during periods that there is no proposed Agency Transaction pursuant to this clause (iii) unless such request is delivered at any time (I) during which a delivery of a Transaction Acceptance is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein), (II) during which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or (III) during any period beginning on and including the first day of a Terms Agreement through and including the related Settlement Date) Proposal (each date referred to clauses (i), (ii) and (iii) above, a “Bring-Down Delivery Date”), the Company shall, unless the Subject Agent agrees otherwise, furnish or cause to be furnished to the Subject Agent a certificate, dated as of such Bring-Down Delivery Date and delivered within three two Exchange Business Days of after the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the certificate referred to in Section 5(a)(i) hereof, modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to at the time of delivery of such certificates certificate, or, in lieu of such certificate, a certificate to the effect that the statements contained in the certificate referred to in Section 5(a)(i) hereof furnished to Subject Agent are the Agents is true and correct as of such Bring-Down Delivery Date as though made at and as of such date (except that such statements shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to at the time of delivery of such certificate); provided, however, that the filing of a proxy statement in connection with the Company’s annual or special meeting of stockholders or a Current Report on Form 8-K will not constitute a Bring-Down Delivery Date under clause (i) above unless either (A) (x) such Current Report on Form 8-K is filed at any time during which either a Transaction Acceptance is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein) or a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or such Current Report on Form 8-K is filed at any time from and including the date of a Terms Agreement through and including the related Settlement Date and (y) the Subject Agent has reasonably requested that such date be deemed to be a Bring-Down Delivery Date based upon the event or events reported in such Current Report on Form 8-K, ; or (B) such Current Report on Form 8-K contains capsule financial information, historical or pro forma financial statements, supporting schedules or other financial data, including any Current Report on Form 8-K or part thereof under Item 2.02 of Regulation S-K of the Commission that is considered “filed” under the Exchange Act but, for the avoidance of doubt, excluding any Current Report on Form 8-K or any part thereof under Item 2.02 or 7.01 of such Regulation S-K that is “furnished” under ”; and provided, further, that any Current Report on Form 8-K or amendment thereto filed in connection with any acquisition announced prior to the Exchange Actdate hereof will not constitute a Bring-Down Delivery Date; and provided, further, that an amendment or supplement to the Registration Statement or the Prospectus providing solely for the determination of the terms of the Shares (other than Shares to be offered or sold pursuant to this Agreement or any Terms Agreement) or relating to the offering of other securities pursuant to the Registration Statement will not constitute a Bring-Down Delivery Date.
(c) Each c. On each Bring-Down Delivery Date, the Company shall, unless the Subject Agent agrees Agents agree otherwise, cause to be furnished to Subject Agent the Agents (Aa) the written opinion and, if not included in such opinion, negative assurance letter of Baker▇▇▇▇▇▇ & Bird LLP, Donelsoncounsel to the Company, Bearman, ▇and (b) the written opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇LLP, PC, Maryland counsel to the Company, each dated as of the applicable Bring-Down Delivery Date and delivered within three two Exchange Business Days of after the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, dated and delivered on such Principal Settlement Date, of the same tenor as the opinion opinions and letter letters referred to in Section 5(a)(ii) hereof, but modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to at the time of delivery of such opinions and letterletters, or, in lieu of such opinion opinions and letterletters, such counsel shall furnish the Subject Agent Agents with a letter substantially to the effect that the Subject Agent Agents may rely on the opinion and letter of such counsel referred to in Section 5(a)(ii), furnished to the Subject AgentAgents, to the same extent as though they were dated the date of such letter authorizing reliance (except that statements in such last opinion and letter of such counsel shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to at the time of delivery of such letters authorizing reliance).
(d) Each d. On each Bring-Down Delivery Date, the Company shall, unless the Subject Agent agrees Agents agree otherwise, cause each of Ernst Deloitte & Young Touche LLP (or the Company’s then-current independent registered public accounting firm) to furnish to the Subject Agent Agents a “comfort” comfort letter, dated as of the applicable Bring-Down Delivery Date and delivered within three two Exchange Business Days of after the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the respective letters letter referred to in Section 5(a)(iii5(a)(iv) hereof, but modified to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to at the date of such letter, and, if the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall include or incorporate by reference the financial statements of any entity or business (other than the consolidated financial statements of the Company and its subsidiaries), or any properties or assets, the Company shall, if requested by the Subject AgentAgents, cause a firm of independent registered public accountants to furnish to the Subject Agent Agents a “comfort” comfort letter, dated as of the applicable Bring-Down Delivery Date and delivered as promptly as practicable after the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, addressing such matters as the Subject Agent Agents may reasonably request.
(e) (i) No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Act shall be pending before or, to the knowledge of the Company or the Operating Partnership, threatened by the Commission; the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); and all requests by the Commission for additional information shall have been complied with to the satisfaction of the Subject Agent Agents and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes, shall have occurred and be in effect at the time the Company delivers a Transaction Proposal to the Subject Agent or the time the Subject Agent delivers a Transaction Acceptance to the Companyany Agent; and (ii) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time the Company delivers a Transaction Proposal to the Subject Agent or the time the Subject Agent delivers a Transaction Acceptance to the Companyany Agent.
(f) f. The Company and the Operating Partnership shall reasonably cooperate with any reasonable due diligence review requested by the Subject Agent Agents or its the Agents’ counsel from time to time in connection with the transactions contemplated hereby or any Terms Agreement, including, without limitation, : (i) at the commencement of each intended Purchase Date and any Time of Sale for any Principal Transaction or Principal Settlement Date, providing information and making available appropriate documents and appropriate corporate officers of the Company and the Operating Partnership and, upon reasonable request, representatives of Ernst Deloitte & Young Touche LLP (and, as applicableif the Registration Statement, Deloitte the Prospectus or any Permitted Free-Writing Prospectus shall include or incorporate by reference the financial statements of any entity or business (other than the consolidated financial statements of the Company and Touche LLP its subsidiaries), representatives of the independent registered public accounting firm that audited or reviewed such financial statements) for an update on diligence matters with representatives of the Subject Agent Agents and (ii) at each Bring-Down Delivery Date or and otherwise as the Subject Agent Agents may reasonably request, providing information and making available documents and appropriate corporate officers of the Company Company, the Operating Partnership and representatives of Ernst Deloitte & Young Touche LLP (and, as applicableif the Registration Statement, Deloitte the Prospectus or any Permitted Free-Writing Prospectus shall include or incorporate by reference the financial statements of any entity or business (other than the consolidated financial statements of the Company and Touche LLP its subsidiaries), representatives of the independent registered public accounting firm that audited or reviewed such financial statements) for one or more due diligence sessions with representatives of the Subject Agent Agents and its their counsel.
g. Notwithstanding the foregoing, the Company shall not be obligated to deliver (gor cause to be delivered) any of the documents referred to in Sections 6(b) through 6(d) hereof, be deemed to affirm any of the representations or warranties in this Agreement pursuant to Section 3 or 6(a) hereof after the date hereof during periods in which no Agency Transaction is then-contemplated until the Company delivers a Transaction Proposal pursuant to this Agreement.
h. The Company shall disclose, in its Quarterly Reports on Form 10-Q and in its Annual Report on Form 10-KK to be filed by the Company with the Commission from time to time, the number amount of the Shares sold through the Agents under this Agreement, the Amended and Restated Alternative Distribution Agreements Agreement and any Terms Agreements and Alternative Terms AgreementsAgreement, and the gross and net proceeds to the Company from the sale of the Shares and the compensation paid by the Company with respect to sales of the Shares pursuant to this Agreement during the relevant quarter or, in the case of an Annual Report on Form 10-K, during the fiscal year covered by such Annual Report and the fourth quarter of such fiscal year. All opinions, letters and other documents referred to in Sections 6(b) through (d) above shall be reasonably satisfactory in form and substance to the Subject AgentAgents. The Subject Agent Agents will provide the Company with such notice (which may be oral, and in such case, will be confirmed via e-mail as soon as reasonably practicable thereafter) as is reasonably practicable under the circumstances when requesting an opinion, letter or other document referred to in Sections 6(b) through (d) above.
Appears in 1 contract
Sources: Distribution Agreement (CatchMark Timber Trust, Inc.)
Additional Covenants of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, further covenant and agree with the Subject Agent CF&Co. as follows:
(a) Each delivery of a Transaction Proposal made Notice by the Company that is accepted by the Subject Agent by means of a Transaction Acceptance and each execution and delivery by the Company of a Terms Agreement shall be deemed to be (i) an affirmation that the representations, warranties and agreements of the Company and the Operating Partnership herein contained and contained in any certificate delivered to the Subject Agent CF&Co. pursuant hereto are true and correct at such Time of Acceptance Delivery or the date of such Terms Agreement, as the case may be, and (ii) an undertaking that such representations, warranties and agreements will be true and correct on any applicable Time of Sale and Settlement Date, as though made at and as of each such time (it being understood that such representations, warranties and agreements shall relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of such Transaction Acceptance Notice or Terms Agreement, as the case may be).
(b) Each time that (i) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall be amended or supplemented (including, except as noted in the proviso at the end of this Section 6(b), by the filing of any Incorporated Document), or (ii) there is a Principal Settlement Date pursuant to a Terms Agreement, or (iii) otherwise as the Subject Agent CF&Co. shall reasonably request (on the advice of outside counsel and in accordance with past practice, provided that the Company may decline to comply with any CF&Co. shall not make such a request during periods that there is no proposed Agency Transaction pursuant to this clause (iii) unless such request is delivered at any time (I) during which delivery of a Transaction Acceptance is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein), (II) during which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or (III) during any period beginning on and including the first day of a Terms Agreement through and including the related Settlement Date) Notice (each date referred to clauses (i), (ii) and (iii) above, a “Bring-Down Delivery Date”), the Company and the Operating Partnership shall, unless the Subject Agent CF&Co. agrees otherwise, furnish or cause to be furnished to the Subject Agent CF&Co. a certificate, dated as of such Bring-Down Delivery Date and delivered within three Exchange Business Days as of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the certificate referred to in Section 5(a)(i) hereof, modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificates certificate, or, in lieu of such certificate, a certificate to the effect that the statements contained in the certificate referred to in Section 5(a)(i) hereof furnished to Subject Agent CF&Co. are true and correct as of such Bring-Down Delivery Date as though made at and as of such date (except that such statements shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificate); provided, however, that the filing of a Current Report on Form 8-K will not constitute a Bring-Down Delivery Date unless (A) (x) such Current Report on Form 8-K is filed at any time during which either a Transaction Acceptance is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein) or a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or such Current Report on Form 8-K is filed at any time from and including the date of a Terms Agreement through and including the related Settlement Date and (y) the Subject Agent CF&Co. has reasonably requested that such date be deemed to be a Bring-Down Delivery Date based upon the event or events reported in such Current Report on Form 8-K, K (within five Exchange Business Days of the filing thereof with the Commission) or (B) such Current Report on Form 8-K contains capsule financial information, historical or pro forma financial statements, supporting schedules or other financial data, including any Current Report on Form 8-K or part thereof under Item 2.02 of Regulation S-K of the Commission that is considered “filed” under the Exchange Act but, for the avoidance of doubt, excluding any Current Report on Form 8-K or any part thereof under Item 2.02 or 7.01 of such Regulation S-K that is “furnished” under the Exchange Act; and provided, further, that an amendment or supplement to the Registration Statement or the Prospectus providing solely for the determination of the terms of the Shares (other than Shares to be offered or sold required pursuant to this Agreement or any Terms Agreement) or relating to the offering of other securities pursuant to the Registration Statement will not constitute a Bring-Down Delivery DateSection 2(i).
(c) Each On each Bring-Down Delivery Date, the Company shall, unless the Subject Agent CF&Co. agrees otherwise, cause to be furnished to Subject Agent CF&Co.
(A) the written opinion and, if not included in such opinion, and negative assurance letter statement of Baker, Donelson, Bearman, ▇▇▇▇▇▇▇▇ King & ▇▇▇▇▇▇▇▇▇, PCSpalding LLP, counsel to the Company, each dated and delivered as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, dated and delivered on such Principal Settlement Date, of the same tenor as the opinion and letter statement referred to in Section 5(a)(ii) hereof, respectively, but modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such opinions opinion and letterstatement, or, in lieu of such opinion and letterstatement, such counsel shall furnish the Subject Agent CF&Co. with a letter substantially to the effect that the Subject Agent CF&Co. may rely on the opinion and letter statement referred to in Section 5(a)(ii), furnished to the Subject AgentCF&Co., to the same extent as though they were dated the date of such letter authorizing reliance (except that statements in such last opinion and letter shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such letters letter authorizing reliance).
(d) Each On each Bring-Down Delivery Date, the Company shall, unless the Subject Agent CF&Co. agrees otherwise, cause each of Ernst Deloitte & Young Touche LLP to furnish to the Subject Agent CF&Co. a “comfort” letter, dated and delivered as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the respective letters letter referred to in Section 5(a)(iii) hereof, but modified to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the date of such letter.
(e) On each Bring-Down Delivery Date, and, if to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall include or incorporate by reference the financial statements of any entity or business (other than the Company and its subsidiaries), or any properties or assetsextent required pursuant to Section 2(i) above, the Company shall, if requested by the Subject Agentunless CF&Co. agrees otherwise, cause to be furnished to CF&Co. a firm of independent public accountants to furnish to the Subject Agent a “comfort” letter, dated as certificate of the applicable Bring-Down Delivery Date and delivered as promptly as practicable after chief financial officer of the applicable Bring-Down Delivery Date or, in Company of the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, addressing such matters same tenor as the Subject Agent may reasonably requestcertificate referred to in Section 2(i).
(e) (i) No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Act shall be pending before or to the knowledge of the Company threatened by the Commission; the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); and all requests by the Commission for additional information shall have been complied with to the satisfaction of the Subject Agent CF&Co. and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes, shall will have occurred and be in effect at the time the Company delivers a Transaction Proposal to the Subject Agent or the time the Subject Agent delivers a Transaction Acceptance to the CompanyNotice; and (ii) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time the Company delivers a Transaction Proposal to the Subject Agent or the time the Subject Agent delivers a Transaction Acceptance to the CompanyNotice.
(fg) The Company shall reasonably cooperate with any reasonable due diligence review requested by the Subject Agent CF&Co. or its counsel from time to time in connection with the transactions contemplated hereby or any Terms Agreement, including, without limitation, (i) at the commencement of each intended Purchase Date and any Time of Sale or Settlement Date, making available appropriate corporate officers of the Company and, upon reasonable request, representatives of Ernst Deloitte & Young LLP and, as applicable, Deloitte and Touche LLP for an update on diligence matters with representatives of the Subject Agent CF&Co. and (ii) at each Bring-Down Delivery Date or otherwise as the Subject Agent CF&Co. may reasonably request, providing information and making available documents and appropriate corporate officers of the Company and representatives of Ernst Deloitte & Young LLP and, as applicable, Deloitte and Touche LLP for one or more due diligence sessions with representatives of the Subject Agent CF&Co. and its counsel.
(gh) The Company shall disclose, in its Quarterly Reports quarterly reports on Form 10-Q and Q, in its Annual Report annual report on Form 10-K, or at its option, in prospectus supplements to be filed by the Company from time to time, the number of the Shares sold through the Agents under this Agreement and any Terms Agreement, the Amended and Restated Alternative Distribution Agreements and any Terms Agreements and Alternative Terms Agreements, and the gross and net proceeds to the Company from the sale of the Shares and the compensation paid by the Company with respect to sales of the Shares pursuant to this Agreement during the relevant quarter oror such shorter period determined by the Company, in as the case of an Annual Report on Form 10-K, during the fiscal year covered by such Annual Report and the fourth quarter of such fiscal yearmay be. All opinions, letters and other documents referred to in Sections 6(b) through (de) above shall be reasonably satisfactory in form and substance to the Subject AgentCF&Co. The Subject Agent CF&Co. will provide the Company with such notice (which may be oral, and in such case, will be confirmed via e-mail or facsimile as soon as reasonably practicable thereafter) as is reasonably practicable under the circumstances when requesting an opinion, letter or other document referred to in Sections 6(b) through (de) above.
Appears in 1 contract
Additional Covenants of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, further covenant and agree with the Subject Agent ▇▇▇▇▇ as follows:
(a) Each delivery of a Transaction Proposal made Notice by the Company that is accepted by the Subject Agent by means of a Transaction Acceptance and each execution and delivery by the Company of a Terms Agreement shall be deemed to be (i) an affirmation that the representations, warranties and agreements of the Company and the Operating Partnership herein contained and contained in any certificate delivered to the Subject Agent ▇▇▇▇▇ pursuant hereto are true and correct at such Time of Acceptance Delivery or the date of such Terms Agreement, as the case may be, and (ii) an undertaking that such representations, warranties and agreements will be true and correct on any applicable Time of Sale and Settlement Date, as though made at and as of each such time (it being understood that such representations, warranties and agreements shall relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of such Transaction Acceptance Notice or Terms Agreement, as the case may be).
(b) Each time that (i) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall be amended or supplemented (including, except as noted in the proviso at the end of this Section 6(b), by the filing of any Incorporated Document), or (ii) there is a Principal Settlement Date pursuant to a Terms Agreement, or (iii) otherwise as the Subject Agent ▇▇▇▇▇ shall reasonably request (on the advice of outside counsel and in accordance with past practice, provided that the Company may decline to comply with any ▇▇▇▇▇ shall not make such a request during periods that there is no proposed Agency Transaction pursuant to this clause (iii) unless such request is delivered at any time (I) during which delivery of a Transaction Acceptance is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein), (II) during which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or (III) during any period beginning on and including the first day of a Terms Agreement through and including the related Settlement Date) Notice (each date referred to clauses (i), (ii) and (iii) above, a “Bring-Down Delivery Date”), the Company and the Operating Partnership shall, unless the Subject Agent ▇▇▇▇▇ agrees otherwise, furnish or cause to be furnished to the Subject Agent ▇▇▇▇▇ a certificate, dated as of such Bring-Down Delivery Date and delivered within three Exchange Business Days as of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the certificate referred to in Section 5(a)(i) hereof, modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificates certificate, or, in lieu of such certificate, a certificate to the effect that the statements contained in the certificate referred to in Section 5(a)(i) hereof furnished to Subject Agent ▇▇▇▇▇ are true and correct as of such Bring-Down Delivery Date as though made at and as of such date (except that such statements shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificate); provided, however, that the filing of a Current Report on Form 8-K will not constitute a Bring-Down Delivery Date unless (A) (x) such Current Report on Form 8-K is filed at any time during which either a Transaction Acceptance is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein) or a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or such Current Report on Form 8-K is filed at any time from and including the date of a Terms Agreement through and including the related Settlement Date and (y) the Subject Agent ▇▇▇▇▇ has reasonably requested that such date be deemed to be a Bring-Down Delivery Date based upon the event or events reported in such Current Report on Form 8-K, K (within five Exchange Business Days of the filing thereof with the Commission) or (B) such Current Report on Form 8-K contains capsule financial information, historical or pro forma financial statements, supporting schedules or other financial data, including any Current Report on Form 8-K or part thereof under Item 2.02 of Regulation S-K of the Commission that is considered “filed” under the Exchange Act but, for the avoidance of doubt, excluding any Current Report on Form 8-K or any part thereof under Item 2.02 or 7.01 of such Regulation S-K that is “furnished” under the Exchange Act; and provided, further, that an amendment or supplement to the Registration Statement or the Prospectus providing solely for the determination of the terms of the Shares (other than Shares to be offered or sold required pursuant to this Agreement or any Terms Agreement) or relating to the offering of other securities pursuant to the Registration Statement will not constitute a Bring-Down Delivery DateSection 2(i).
(c) Each On each Bring-Down Delivery Date, the Company shall, unless the Subject Agent ▇▇▇▇▇ agrees otherwise, cause to be furnished to Subject Agent ▇▇▇▇▇ (A) the written opinion and, if not included in such opinion, and negative assurance letter statement of Baker, Donelson, Bearman, ▇▇▇▇▇▇▇▇ King & ▇▇▇▇▇▇▇▇▇, PCSpalding LLP, counsel to the Company, each dated and delivered as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, dated and delivered on such Principal Settlement Date, of the same tenor as the opinion and letter statement referred to in Section 5(a)(ii) hereof, respectively, but modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such opinions opinion and letterstatement, or, in lieu of such opinion and letterstatement, such counsel shall furnish the Subject Agent ▇▇▇▇▇ with a letter substantially to the effect that the Subject Agent ▇▇▇▇▇ may rely on the opinion and letter statement referred to in Section 5(a)(ii), furnished to the Subject Agent▇▇▇▇▇, to the same extent as though they were dated the date of such letter authorizing reliance (except that statements in such last opinion and letter shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such letters letter authorizing reliance).
(d) Each On each Bring-Down Delivery Date, the Company shall, unless the Subject Agent ▇▇▇▇▇ agrees otherwise, cause each of Ernst Deloitte & Young Touche LLP to furnish to the Subject Agent ▇▇▇▇▇ a “comfort” letter, dated and delivered as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the respective letters letter referred to in Section 5(a)(iii) hereof, but modified to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the date of such letter.
(e) On each Bring-Down Delivery Date, and, if to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall include or incorporate by reference the financial statements of any entity or business (other than the Company and its subsidiaries), or any properties or assetsextent required pursuant to Section 2(i) above, the Company shall, if requested by the Subject Agentunless ▇▇▇▇▇ agrees otherwise, cause to be furnished to ▇▇▇▇▇ a firm of independent public accountants to furnish to the Subject Agent a “comfort” letter, dated as certificate of the applicable Bring-Down Delivery Date and delivered as promptly as practicable after chief financial officer of the applicable Bring-Down Delivery Date or, in Company of the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, addressing such matters same tenor as the Subject Agent may reasonably requestcertificate referred to in Section 2(i).
(e) (i) No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Act shall be pending before or to the knowledge of the Company threatened by the Commission; the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); and all requests by the Commission for additional information shall have been complied with to the satisfaction of the Subject Agent ▇▇▇▇▇ and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes, shall will have occurred and be in effect at the time the Company delivers a Transaction Proposal to the Subject Agent or the time the Subject Agent delivers a Transaction Acceptance to the CompanyNotice; and (ii) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time the Company delivers a Transaction Proposal to the Subject Agent or the time the Subject Agent delivers a Transaction Acceptance to the CompanyNotice.
(fg) The Company shall reasonably cooperate with any reasonable due diligence review requested by the Subject Agent ▇▇▇▇▇ or its counsel from time to time in connection with the transactions contemplated hereby or any Terms Agreement, including, without limitation, (i) at the commencement of each intended Purchase Date and any Time of Sale or Settlement Date, making available appropriate corporate officers of the Company and, upon reasonable request, representatives of Ernst Deloitte & Young LLP and, as applicable, Deloitte and Touche LLP for an update on diligence matters with representatives of the Subject Agent ▇▇▇▇▇ and (ii) at each Bring-Down Delivery Date or otherwise as the Subject Agent ▇▇▇▇▇ may reasonably request, providing information and making available documents and appropriate corporate officers of the Company and representatives of Ernst Deloitte & Young LLP and, as applicable, Deloitte and Touche LLP for one or more due diligence sessions with representatives of the Subject Agent ▇▇▇▇▇ and its counsel.
(gh) The Company shall disclose, in its Quarterly Reports quarterly reports on Form 10-Q and Q, in its Annual Report annual report on Form 10-K, or at its option, in prospectus supplements to be filed by the Company from time to time, the number of the Shares sold through the Agents under this Agreement and any Terms Agreement, the Amended and Restated Alternative Distribution Agreements and any Terms Agreements and Alternative Terms Agreements, and the gross and net proceeds to the Company from the sale of the Shares and the compensation paid by the Company with respect to sales of the Shares pursuant to this Agreement during the relevant quarter oror such shorter period determined by the Company, in as the case of an Annual Report on Form 10-K, during the fiscal year covered by such Annual Report and the fourth quarter of such fiscal yearmay be. All opinions, letters and other documents referred to in Sections 6(b) through (de) above shall be reasonably satisfactory in form and substance to the Subject Agent▇▇▇▇▇. The Subject Agent ▇▇▇▇▇ will provide the Company with such notice (which may be oral, and in such case, will be confirmed via e-mail or facsimile as soon as reasonably practicable thereafter) as is reasonably practicable under the circumstances when requesting an opinion, letter or other document referred to in Sections 6(b) through (de) above.
Appears in 1 contract
Additional Covenants of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, further covenant and agree with the Subject Agent ▇▇▇▇▇ Fargo as follows:
(a) Each acceptance of a Transaction Proposal made Notice by the Company that is accepted by the Subject Agent by means of a Transaction Acceptance and each execution and delivery by the Company of a Terms Agreement shall be deemed to be (i) an affirmation that the representations, warranties and agreements of the Company and the Operating Partnership herein contained and contained in any certificate delivered to the Subject Agent ▇▇▇▇▇ Fargo pursuant hereto are true and correct at such Time of Acceptance or the date of such Terms Agreement, as the case may be, and (ii) an undertaking that such representations, warranties and agreements will be true and correct on any applicable Time of Sale and Settlement Date, as though made at and as of each such time (it being understood that such representations, warranties and agreements shall relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of such Transaction Acceptance Notice or Terms Agreement, as the case may be).
(b) Each time that (i) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall be amended or supplemented (including, except as noted in the proviso at the end of this Section 6(b), by the filing of any Incorporated Document, but excluding any prospectus supplement filed pursuant to Section 4(b) hereof), (ii) there is a Principal Settlement Date pursuant to a Terms Agreement, or (iii) otherwise as the Subject Agent ▇▇▇▇▇ Fargo shall reasonably request, provided that ▇▇▇▇▇ Fargo shall not make such a request (provided during periods that the Company may decline is not proposing Agency Transactions to comply with any request pursuant to this clause (iii) unless such request is delivered at any time (I) during which a Transaction Acceptance is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein), (II) during which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or (III) during any period beginning on and including the first day of a Terms Agreement through and including the related Settlement Date) ▇▇▇▇▇ Fargo (each date referred to clauses (i), (ii) and (iii) above, a “Bring-Down Delivery Date”), the Company shall, unless the Subject Agent ▇▇▇▇▇ Fargo agrees otherwise, furnish or cause to be furnished to the Subject Agent ▇▇▇▇▇ Fargo a certificate, dated as of such Bring-Down Delivery Date and delivered within three Exchange Business Days as of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the certificate referred to in Section 5(a)(i(a)(i) hereof, modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificates certificate, or, in lieu of such certificate, a certificate to the effect that the statements contained in the certificate referred to in Section 5(a)(i) hereof furnished to Subject Agent ▇▇▇▇▇ Fargo are true and correct as of such Bring-Down Delivery Date as though made at and as of such date (except that such statements shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificate); provided, however, that the filing of a Current Report on Form 8-K will not constitute a Bring-Down Delivery Date unless (A) (x) such Current Report on Form 8-K is filed at any time during which either a Transaction Acceptance Notice is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein) or a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or such Current Report on Form 8-K is filed at any time from and including the date of a Terms Agreement through and including the related Settlement Date and (y) the Subject Agent ▇▇▇▇▇ Fargo has reasonably requested that such date be deemed to be a Bring-Down Delivery Date based upon the reasonable judgment of ▇▇▇▇▇ Fargo that the event or events reported in such Current Report on Form 8-KK has a material adverse effect on the condition, financial or otherwise, or the earnings, assets or business affairs or prospects of the Operating Partnership, Company and their Subsidiaries, taken as a whole, or on the 739 in service properties owned, directly or indirectly, by the Company taken as a whole, or otherwise restates historical financial statements or contains financial statements required by Rules 3-05 or 3-14 of Regulation S-X or (B) such Current Report on Form 8-K contains capsule financial information, historical or pro forma financial statements, supporting schedules or other financial data, including any Current Report on Form 8-K or part thereof under Item 2.02 of Regulation S-K of the Commission that is considered “filed” under the Exchange Act but, for the avoidance of doubt, excluding any Current Report on Form 8-K or any part thereof under Item 2.02 or 7.01 of such Regulation S-K that is “furnished” under the Exchange Act; and provided, further, that an amendment or supplement to the Registration Statement or the Prospectus providing solely for the determination of the terms of the Shares (other than Shares to be offered or sold required pursuant to this Agreement or any Terms Agreement) or relating to the offering of other securities pursuant to the Registration Statement will not constitute a Bring-Down Delivery DateSection 2(i).
(c) Each Bring-Down Delivery Date, the Company shall, unless the Subject Agent ▇▇▇▇▇ Fargo agrees otherwise, cause to be furnished to Subject Agent ▇▇▇▇▇ Fargo (A) the written opinion and, if not included in such opinion, opinions and negative assurance letter of Baker, Donelson, Bearman, Barack ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ LLP, PCcounsel to the Company and of McGuireWoods LLP, special Maryland counsel to the Company, each dated and delivered as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, dated and delivered on such Principal Settlement Date, of the same tenor as the opinion opinions and letter referred to in Section Sections 5(a)(ii) and 5(a)(iii) hereof, respectively, but modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such opinions and letter, or, in lieu of such opinion opinions and letter, such counsel and Maryland counsel shall furnish the Subject Agent ▇▇▇▇▇ Fargo with a letter letters substantially to the effect that the Subject Agent ▇▇▇▇▇ Fargo may rely on the opinion opinions and letter referred to in Section Sections 5(a)(ii) and 5(a)(iii), furnished to the Subject Agent▇▇▇▇▇ Fargo, to the same extent as though they were dated the date of such letter letters authorizing reliance (except that statements in such last opinion and letter opinions shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such letters authorizing reliance).
(d) Each Bring-Down Delivery Date, the Company shall, unless the Subject Agent ▇▇▇▇▇ Fargo agrees otherwise, cause each of Ernst & Young PricewatershouseCoopers LLP to furnish to the Subject Agent ▇▇▇▇▇ Fargo a “comfort” letter, dated and delivered as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the respective letters letter referred to in Section 5(a)(iii5(a)(iv) hereof, but modified to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the date of such letter, and, if the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall include or incorporate by reference the financial statements of any entity or business (other than the Company and its subsidiaries), or any properties or assets, the Company shall, if requested by the Subject Agent, cause a firm of independent public accountants to furnish to the Subject Agent a “comfort” letter, dated as of the applicable Bring-Down Delivery Date and delivered as promptly as practicable after the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, addressing such matters as the Subject Agent may reasonably request.
(e) (i) No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Act shall be pending before or threatened by the CommissionCommission at the time the Company accepts a Transaction Notice; the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of a an Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); and all requests by the Commission for additional information shall have been complied with to the satisfaction of the Subject Agent ▇▇▇▇▇ Fargo and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes, shall will have occurred and be in effect at the time the Company delivers accepts a Transaction Proposal to the Subject Agent or the time the Subject Agent delivers a Transaction Acceptance to the CompanyNotice; and (ii) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time the Company delivers accepts a Transaction Proposal to the Subject Agent or the time the Subject Agent delivers a Transaction Acceptance to the CompanyNotice.
(f) The Company shall reasonably cooperate with any reasonable due diligence review requested by the Subject Agent ▇▇▇▇▇ Fargo or its counsel from time to time in connection with the transactions contemplated hereby or any Terms Agreement, including, without limitation, (i) at the commencement of each intended Purchase Date and any Time of Sale or Settlement Date, making available appropriate corporate officers of the Company and, upon reasonable request, representatives of Ernst & Young LLP and, as applicable, Deloitte and Touche PricewatershouseCoopers LLP for an update on diligence matters with representatives of the Subject Agent ▇▇▇▇▇ Fargo and (ii) at each Bring-Down Delivery Date or otherwise as the Subject Agent ▇▇▇▇▇ Fargo may reasonably request, providing information and making available documents and appropriate corporate officers of the Company and representatives of Ernst & Young LLP and, as applicable, Deloitte and Touche PricewatershouseCoopers LLP for one or more due diligence sessions with representatives of the Subject Agent ▇▇▇▇▇ Fargo and its counsel.
(g) The Company shall disclose, in its Quarterly Reports quarterly reports on Form 10-Q and Q, in its Annual Report annual report on Form 10-KK and, if requested by ▇▇▇▇▇ Fargo, in prospectus supplements to be filed by the Company from time to time, including in accordance with Section 4(b), the number of the Shares sold through the Agents under this Agreement and any Terms Agreement, the Amended and Restated Alternative Distribution Agreements and any Terms Agreements and Alternative Terms Agreements, and the gross and net proceeds to the Company from the sale of the Shares and the compensation paid by the Company with respect to sales of the Shares pursuant to this Agreement during the relevant quarter oror such shorter period determined by the Company, in as the case of an Annual Report on Form 10-K, during the fiscal year covered by such Annual Report and the fourth quarter of such fiscal yearmay be. All opinions, letters and other documents referred to in Sections 6(b) through (d) above shall be reasonably satisfactory in form and substance to the Subject Agent▇▇▇▇▇ Fargo. The Subject Agent ▇▇▇▇▇ Fargo will provide the Company with such notice (which may be oral, and in such case, will be confirmed via e-mail or facsimile as soon as reasonably practicable thereafter) as is reasonably practicable under the circumstances when requesting an opinion, letter or other document referred to in Sections 6(b) through (d) above.
Appears in 1 contract
Sources: Distribution Agreement (First Industrial Realty Trust Inc)
Additional Covenants of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, further covenant and agree with the Subject Agent as follows:
(a) Each Transaction Proposal made by the Company that is accepted by the Subject Agent by means of a Transaction Acceptance and each execution and delivery by the Company of a Terms Agreement shall be deemed to be (i) an affirmation that the representations, warranties and agreements of the Company and the Operating Partnership herein contained and contained in any certificate delivered to the Subject Agent pursuant hereto are true and correct at such Time of Acceptance or the date of such Terms Agreement, as the case may be, and (ii) an undertaking that such representations, warranties and agreements will be true and correct on any applicable Time of Sale and Settlement Date, as though made at and as of each such time (it being understood that such representations, warranties and agreements shall relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of such Transaction Acceptance or Terms Agreement, as the case may be).
(b) Each time that (i) the Registration Statement, Statement or the Prospectus or any Permitted Free Writing Prospectus shall be amended or supplemented (including, except as noted in the proviso at the end of this Section 6(b), by the filing of any Incorporated Document), (ii) the Company files an annual report on Form 10-K or a quarterly report on Form 10-Q under the Exchange Act, (iii) the Company files a report on Form 8-K under the Exchange Act containing amended Company financial information (excluding information “furnished” but not filed), (iv) there is a Principal Settlement Date pursuant to a Terms Agreement, or (iiiv) otherwise as the Subject Agent shall reasonably request (provided that the Company may decline to comply with any request pursuant to this clause (iiiv) unless such request is delivered at any time (Ix) during which a Transaction Acceptance is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein), (IIy) during which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or (IIIz) during any period beginning on and including the first day of a Terms Agreement through and including the related Settlement Date) (each date referred to clauses (i), (ii), (iii), (iv) and (iiiv) above, a “Bring-Down Delivery Date”), the Company shall, unless the Subject Agent agrees otherwise, furnish or cause to be furnished to the Subject Agent a certificate, dated as of such Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the certificate referred to in Section 5(a)(i) hereof, modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificates or, in lieu of such certificate, a certificate to the effect that the statements contained in the certificate referred to in Section 5(a)(i) hereof furnished to Subject Agent are true and correct as form of such Bring-Down Delivery Date as though made at and as of such date (except that such statements shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificate)Exhibit B hereto; provided, however, that the filing of a Current Report on Form 8-K will not constitute a Bring-Down Delivery Date unless (A) (x) such Current Report on Form 8-K is filed at any time during which either a Transaction Acceptance is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein) or a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or such Current Report on Form 8-K is filed at any time from and including the date of a Terms Agreement through and including the related Settlement Date and (y) the Subject Agent has reasonably requested that such date be deemed to be a Bring-Down Delivery Date based upon the event or events reported in such Current Report on Form 8-K, or (B) such Current Report on Form 8-K contains capsule financial information, historical or pro forma financial statements, supporting schedules or other financial data, including any Current Report on Form 8-K or part thereof under Item 2.02 of Regulation S-K of the Commission that is considered “filed” under the Exchange Act but, for the avoidance of doubt, excluding any Current Report on Form 8-K or any part thereof under Item 2.02 or 7.01 of such Regulation S-K that is “furnished” under the Exchange Act; and provided, further, that an amendment or supplement to the Registration Statement or the Prospectus providing solely for the determination of the terms of the Shares (other than Shares to be offered or sold pursuant to this Agreement or any Terms Agreement) or relating to the a different offering of other securities pursuant to the Registration Statement will not constitute a Bring-Down Delivery Date.
(c) Each On each Bring-Down Delivery Date, the Company shall, unless the Subject Agent agrees otherwise, cause to be furnished to Subject Agent (A) the written opinion and, if not included in such opinion, negative assurance letter of Baker, Donelson, Bearman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, PCLovells US LLP, counsel to the Company, each dated as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, dated and delivered on such Principal Settlement Date, of the same tenor as the opinion and letter referred to in Section 5(a)(ii5(a)(i) hereof, but modified as necessary to relate to the Registration Statement, the Prospectus or Prospectus, any Permitted Free Writing Prospectus and the General Disclosure Package as amended and supplemented to the time of delivery of such opinions and letter, or, in lieu of such opinion and letter, such counsel shall furnish the Subject Agent with a letter substantially to the effect that the Subject Agent may rely on the opinion and letter referred to in Section 5(a)(ii5(a)(i), furnished to the Subject Agent, to the same extent as though they were dated the date of such letter authorizing reliance (except that statements in such last opinion and letter shall be deemed to relate to the Registration Statement, the Prospectus or Prospectus, any Permitted Free Writing Prospectus and the General Disclosure Package as amended and supplemented to the time of delivery of such letters authorizing reliance).
(d) Each On each Bring-Down Delivery Date, the Company shall, unless the Subject Agent agrees otherwise, cause each of Ernst & Young LLP and/or Deloitte & Touche LLP to furnish to the Subject Agent a one or more “comfort” letterletters, dated as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the respective letters referred to in Section 5(a)(iii5(a)(ii) hereof, but modified to relate to the Registration Statement, the Prospectus or Prospectus, any Permitted Free Writing Prospectus and the General Disclosure Package as amended and supplemented to the date of such letter, and, if the Registration Statement, the Prospectus or Prospectus, any Permitted Free Writing Prospectus and the General Disclosure Package shall include or incorporate by reference the financial statements of any entity or business (other than the Company and its subsidiaries), or any properties or assets, the Company shall, if requested by the Subject Agent, cause a firm of independent public accountants to furnish to the Subject Agent a “comfort” letter, dated as of the applicable Bring-Down Delivery Date and delivered as promptly as practicable after the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, addressing such matters as the Subject Agent may reasonably request.
(e) (i) No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Act shall be pending before or threatened by the Commission; the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); and all requests by the Commission for additional information shall have been complied with to the satisfaction of the Subject Agent and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes, shall have occurred and be in effect at the time the Company delivers a Transaction Proposal to the Subject Agent or the time the Subject Agent delivers a Transaction Acceptance to the Company; and (ii) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, therein not misleading at the time the Company delivers a Transaction Proposal to the Subject Agent or the time the Subject Agent delivers a Transaction Acceptance to the Company.
(f) The Company shall reasonably cooperate with any reasonable due diligence review requested by the Subject Agent or its counsel from time to time in connection with the transactions contemplated hereby or any Terms Agreement, including, without limitation, (i) at the commencement of each intended Purchase Date and any Time of Sale or Settlement Date, making available appropriate corporate officers of the Company and, upon reasonable request, representatives of Ernst & Young LLP and, as applicable, and/or Deloitte and & Touche LLP for an update on diligence matters with representatives of the Subject Agent and (ii) at each Bring-Down Delivery Date or otherwise as the Subject Agent may reasonably request, providing information and making available documents and appropriate corporate officers of the Company and representatives of Ernst & Young LLP and, as applicable, and/or Deloitte and & Touche LLP for one or more due diligence sessions with representatives of the Subject Agent and its counsel.
(g) The Company shall disclose, in its Quarterly Reports on Form 10-Q and in its Annual Report on Form 10-K, the number of the Shares sold through the Agents under this Agreement, the Amended and Restated Alternative Distribution Agreements and any Terms Agreements and Alternative Terms Agreements, and the gross and net proceeds to the Company from the sale of the Shares during the relevant quarter or, in the case of an Annual Report on Form 10-K, during the fiscal year covered by such Annual Report and the fourth quarter of such fiscal year. All opinions, letters and other documents referred to in Sections 6(b) through (d) above this Section 6 shall be reasonably satisfactory in form and substance to the Subject Agent. The Subject Agent will provide the Company with such notice (which may be oraloral and, and in such case, will be confirmed via e-mail as soon as reasonably practicable thereafter) as is reasonably practicable under the circumstances when requesting an opinion, letter or other any such document referred to in Sections 6(b) through (d) abovethis Section 6.
Appears in 1 contract
Sources: Equity Distribution Agreement (Brixmor Operating Partnership LP)
Additional Covenants of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, further covenant and agree with the Subject Agent Mitsubishi as follows:
(a) Each delivery of a Transaction Proposal made Notice by the Company that is accepted by the Subject Agent by means of a Transaction Acceptance and each execution and delivery by the Company of a Terms Agreement shall be deemed to be (i) an affirmation that the representations, warranties and agreements of the Company and the Operating Partnership herein contained and contained in any certificate delivered to the Subject Agent Mitsubishi pursuant hereto are true and correct at such Time of Acceptance Delivery or the date of such Terms Agreement, as the case may be, and (ii) an undertaking that such representations, warranties and agreements will be true and correct on any applicable Time of Sale and Settlement Date, as though made at and as of each such time (it being understood that such representations, warranties and agreements shall relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of such Transaction Acceptance Notice or Terms Agreement, as the case may be).
(b) Each time that (i) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall be amended or supplemented (including, except as noted in the proviso at the end of this Section 6(b), by the filing of any Incorporated Document), or (ii) there is a Principal Settlement Date pursuant to a Terms Agreement, or (iii) otherwise as the Subject Agent Mitsubishi shall reasonably request (on the advice of outside counsel and in accordance with past practice, provided that the Company may decline to comply with any Mitsubishi shall not make such a request during periods that there is no proposed Agency Transaction pursuant to this clause (iii) unless such request is delivered at any time (I) during which delivery of a Transaction Acceptance is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein), (II) during which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or (III) during any period beginning on and including the first day of a Terms Agreement through and including the related Settlement Date) Notice (each date referred to clauses (i), (ii) and (iii) above, a “Bring-Down Delivery Date”), the Company and the Operating Partnership shall, unless the Subject Agent Mitsubishi agrees otherwise, furnish or cause to be furnished to the Subject Agent Mitsubishi a certificate, dated as of such Bring-Down Delivery Date and delivered within three Exchange Business Days as of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the certificate referred to in Section 5(a)(i) hereof, modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificates certificate, or, in lieu of such certificate, a certificate to the effect that the statements contained in the certificate referred to in Section 5(a)(i) hereof furnished to Subject Agent Mitsubishi are true and correct as of such Bring-Down Delivery Date as though made at and as of such date (except that such statements shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificate); provided, however, that the filing of a Current Report on Form 8-K will not constitute a Bring-Down Delivery Date unless (A) (x) such Current Report on Form 8-K is filed at any time during which either a Transaction Acceptance is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein) or a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or such Current Report on Form 8-K is filed at any time from and including the date of a Terms Agreement through and including the related Settlement Date and (y) the Subject Agent Mitsubishi has reasonably requested that such date be deemed to be a Bring-Down Delivery Date based upon the event or events reported in such Current Report on Form 8-K, K (within five Exchange Business Days of the filing thereof with the Commission) or (B) such Current Report on Form 8-K contains capsule financial information, historical or pro forma financial statements, supporting schedules or other financial data, including any Current Report on Form 8-K or part thereof under Item 2.02 of Regulation S-K of the Commission that is considered “filed” under the Exchange Act but, for the avoidance of doubt, excluding any Current Report on Form 8-K or any part thereof under Item 2.02 or 7.01 of such Regulation S-K that is “furnished” under the Exchange Act; and provided, further, that an amendment or supplement to the Registration Statement or the Prospectus providing solely for the determination of the terms of the Shares (other than Shares to be offered or sold required pursuant to this Agreement or any Terms Agreement) or relating to the offering of other securities pursuant to the Registration Statement will not constitute a Bring-Down Delivery DateSection 2(i).
(c) Each On each Bring-Down Delivery Date, the Company shall, unless the Subject Agent Mitsubishi agrees otherwise, cause to be furnished to Subject Agent Mitsubishi (A) the written opinion and, if not included in such opinion, and negative assurance letter statement of Baker, Donelson, Bearman, ▇▇▇▇▇▇▇▇ King & ▇▇▇▇▇▇▇▇▇, PCSpalding LLP, counsel to the Company, each dated and delivered as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, dated and delivered on such Principal Settlement Date, of the same tenor as the opinion and letter statement referred to in Section 5(a)(ii) hereof, respectively, but modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such opinions opinion and letterstatement, or, in lieu of such opinion and letterstatement, such counsel shall furnish the Subject Agent Mitsubishi with a letter substantially to the effect that the Subject Agent Mitsubishi may rely on the opinion and letter statement referred to in Section 5(a)(ii), furnished to the Subject AgentMitsubishi, to the same extent as though they were dated the date of such letter authorizing reliance (except that statements in such last opinion and letter shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such letters letter authorizing reliance).
(d) Each On each Bring-Down Delivery Date, the Company shall, unless the Subject Agent Mitsubishi agrees otherwise, cause each of Ernst Deloitte & Young Touche LLP to furnish to the Subject Agent Mitsubishi a “comfort” letter, dated and delivered as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the respective letters letter referred to in Section 5(a)(iii) hereof, but modified to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the date of such letter.
(e) On each Bring-Down Delivery Date, and, if to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall include or incorporate by reference the financial statements of any entity or business (other than the Company and its subsidiaries), or any properties or assetsextent required pursuant to Section 2(i) above, the Company shall, if requested by the Subject Agentunless Mitsubishi agrees otherwise, cause to be furnished to Mitsubishi a firm of independent public accountants to furnish to the Subject Agent a “comfort” letter, dated as certificate of the applicable Bring-Down Delivery Date and delivered as promptly as practicable after chief financial officer of the applicable Bring-Down Delivery Date or, in Company of the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, addressing such matters same tenor as the Subject Agent may reasonably requestcertificate referred to in Section 2(i).
(e) (i) No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Act shall be pending before or to the knowledge of the Company threatened by the Commission; the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); and all requests by the Commission for additional information shall have been complied with to the satisfaction of the Subject Agent Mitsubishi and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes, shall will have occurred and be in effect at the time the Company delivers a Transaction Proposal to the Subject Agent or the time the Subject Agent delivers a Transaction Acceptance to the CompanyNotice; and (ii) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time the Company delivers a Transaction Proposal to the Subject Agent or the time the Subject Agent delivers a Transaction Acceptance to the CompanyNotice.
(fg) The Company shall reasonably cooperate with any reasonable due diligence review requested by the Subject Agent Mitsubishi or its counsel from time to time in connection with the transactions contemplated hereby or any Terms Agreement, including, without limitation, (i) at the commencement of each intended Purchase Date and any Time of Sale or Settlement Date, making available appropriate corporate officers of the Company and, upon reasonable request, representatives of Ernst Deloitte & Young LLP and, as applicable, Deloitte and Touche LLP for an update on diligence matters with representatives of the Subject Agent Mitsubishi and (ii) at each Bring-Down Delivery Date or otherwise as the Subject Agent Mitsubishi may reasonably request, providing information and making available documents and appropriate corporate officers of the Company and representatives of Ernst Deloitte & Young LLP and, as applicable, Deloitte and Touche LLP for one or more due diligence sessions with representatives of the Subject Agent Mitsubishi and its counsel.
(gh) The Company shall disclose, in its Quarterly Reports quarterly reports on Form 10-Q and Q, in its Annual Report annual report on Form 10-K, or at its option, in prospectus supplements to be filed by the Company from time to time, the number of the Shares sold through the Agents under this Agreement and any Terms Agreement, the Amended and Restated Alternative Distribution Agreements and any Terms Agreements and Alternative Terms Agreements, and the gross and net proceeds to the Company from the sale of the Shares and the compensation paid by the Company with respect to sales of the Shares pursuant to this Agreement during the relevant quarter oror such shorter period determined by the Company, in as the case of an Annual Report on Form 10-K, during the fiscal year covered by such Annual Report and the fourth quarter of such fiscal yearmay be. All opinions, letters and other documents referred to in Sections 6(b) through (de) above shall be reasonably satisfactory in form and substance to the Subject AgentMitsubishi. The Subject Agent Mitsubishi will provide the Company with such notice (which may be oral, and in such case, will be confirmed via e-mail or facsimile as soon as reasonably practicable thereafter) as is reasonably practicable under the circumstances when requesting an opinion, letter or other document referred to in Sections 6(b) through (de) above.
Appears in 1 contract
Additional Covenants of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, further covenant and agree with the Subject Agent JPMS as follows:
(a) Each delivery of a Transaction Proposal made Notice by the Company that is accepted by the Subject Agent by means of a Transaction Acceptance and each execution and delivery by the Company of a Terms Agreement shall be deemed to be (i) an affirmation that the representations, warranties and agreements of the Company and the Operating Partnership herein contained and contained in any certificate delivered to the Subject Agent JPMS pursuant hereto are true and correct at such Time of Acceptance Delivery or the date of such Terms Agreement, as the case may be, and (ii) an undertaking that such representations, warranties and agreements will be true and correct on any applicable Time of Sale and Settlement Date, as though made at and as of each such time (it being understood that such representations, warranties and agreements shall relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of such Transaction Acceptance Notice or Terms Agreement, as the case may be).
(b) Each time that (i) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall be amended or supplemented (including, except as noted in the proviso at the end of this Section 6(b), by the filing of any Incorporated Document), or (ii) there is a Principal Settlement Date pursuant to a Terms Agreement, or (iii) otherwise as the Subject Agent JPMS shall reasonably request (on the advice of outside counsel and in accordance with past practice, provided that the Company may decline to comply with any JPMS shall not make such a request during periods that there is no proposed Agency Transaction pursuant to this clause (iii) unless such request is delivered at any time (I) during which delivery of a Transaction Acceptance is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein), (II) during which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or (III) during any period beginning on and including the first day of a Terms Agreement through and including the related Settlement Date) Notice (each date referred to clauses (i), (ii) and (iii) above, a “Bring-Down Delivery Date”), the Company and the Operating Partnership shall, unless the Subject Agent JPMS agrees otherwise, furnish or cause to be furnished to the Subject Agent JPMS a certificate, dated as of such Bring-Down Delivery Date and delivered within three Exchange Business Days as of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the certificate referred to in Section 5(a)(i) hereof, modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificates certificate, or, in lieu of such certificate, a certificate to the effect that the statements contained in the certificate referred to in Section 5(a)(i) hereof furnished to Subject Agent JPMS are true and correct as of such Bring-Down Delivery Date as though made at and as of such date (except that such statements shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificate); provided, however, that the filing of a Current Report on Form 8-K will not constitute a Bring-Down Delivery Date unless (A) (x) such Current Report on Form 8-K is filed at any time during which either a Transaction Acceptance is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein) or a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or such Current Report on Form 8-K is filed at any time from and including the date of a Terms Agreement through and including the related Settlement Date and (y) the Subject Agent JPMS has reasonably requested that such date be deemed to be a Bring-Down Delivery Date based upon the event or events reported in such Current Report on Form 8-K, K (within five Exchange Business Days of the filing thereof with the Commission) or (B) such Current Report on Form 8-K contains capsule financial information, historical or pro forma financial statements, supporting schedules or other financial data, including any Current Report on Form 8-K or part thereof under Item 2.02 of Regulation S-K of the Commission that is considered “filed” under the Exchange Act but, for the avoidance of doubt, excluding any Current Report on Form 8-K or any part thereof under Item 2.02 or 7.01 of such Regulation S-K that is “furnished” under the Exchange Act; and provided, further, that an amendment or supplement to the Registration Statement or the Prospectus providing solely for the determination of the terms of the Shares (other than Shares to be offered or sold required pursuant to this Agreement or any Terms Agreement) or relating to the offering of other securities pursuant to the Registration Statement will not constitute a Bring-Down Delivery DateSection 2(i).
(c) Each Bring-Down Delivery Date, the Company shall, unless the Subject Agent JPMS agrees otherwise, cause to be furnished to Subject Agent JPMS (A) the written opinion and, if not included in such opinion, and negative assurance letter statement of Baker, Donelson, Bearman, ▇▇▇▇▇▇▇▇ King & ▇▇▇▇▇▇▇▇▇, PCSpalding LLP, counsel to the Company, each dated and delivered as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, dated and delivered on such Principal Settlement Date, of the same tenor as the opinion and letter statement referred to in Section 5(a)(ii) hereof, respectively, but modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such opinions opinion and letterstatement, or, in lieu of such opinion and letterstatement, such counsel shall furnish the Subject Agent JPMS with a letter substantially to the effect that the Subject Agent JPMS may rely on the opinion and letter statement referred to in Section 5(a)(ii), furnished to the Subject AgentJPMS, to the same extent as though they were dated the date of such letter authorizing reliance (except that statements in such last opinion and letter shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such letters letter authorizing reliance).
(d) Each Bring-Down Delivery Date, the Company shall, unless the Subject Agent JPMS agrees otherwise, cause each of Ernst Deloitte & Young Touche LLP to furnish to the Subject Agent JPMS a “comfort” letter, dated and delivered as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the respective letters letter referred to in Section 5(a)(iii) hereof, but modified to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the date of such letter.
(e) Each Bring-Down Delivery Date, and, if to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall include or incorporate by reference the financial statements of any entity or business (other than the Company and its subsidiaries), or any properties or assetsextent required pursuant to Section 2(i) above, the Company shall, if requested by the Subject Agentunless JPMS agrees otherwise, cause to be furnished to JPMS a firm of independent public accountants to furnish to the Subject Agent a “comfort” letter, dated as certificate of the applicable Bring-Down Delivery Date and delivered as promptly as practicable after chief financial officer of the applicable Bring-Down Delivery Date or, in Company of the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, addressing such matters same tenor as the Subject Agent may reasonably requestcertificate referred to in Section 2(i).
(e) (i) No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Act shall be pending before or to the knowledge of the Company threatened by the Commission; the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); and all requests by the Commission for additional information shall have been complied with to the satisfaction of the Subject Agent JPMS and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes, shall will have occurred and be in effect at the time the Company delivers a Transaction Proposal to the Subject Agent or the time the Subject Agent delivers a Transaction Acceptance to the CompanyNotice; and (ii) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time the Company delivers a Transaction Proposal to the Subject Agent or the time the Subject Agent delivers a Transaction Acceptance to the CompanyNotice.
(fg) The Company shall reasonably cooperate with any reasonable due diligence review requested by the Subject Agent JPMS or its counsel from time to time in connection with the transactions contemplated hereby or any Terms Agreement, including, without limitation, (i) at the commencement of each intended Purchase Date and any Time of Sale or Settlement Date, making available appropriate corporate officers of the Company and, upon reasonable request, representatives of Ernst Deloitte & Young LLP and, as applicable, Deloitte and Touche LLP for an update on diligence matters with representatives of the Subject Agent JPMS and (ii) at each Bring-Down Delivery Date or otherwise as the Subject Agent JPMS may reasonably request, providing information and making available documents and appropriate corporate officers of the Company and representatives of Ernst Deloitte & Young LLP and, as applicable, Deloitte and Touche LLP for one or more due diligence sessions with representatives of the Subject Agent JPMS and its counsel.
(gh) The Company shall disclose, in its Quarterly Reports quarterly reports on Form 10-Q and Q, in its Annual Report annual report on Form 10-K, or at its option, in prospectus supplements to be filed by the Company from time to time, the number of the Shares sold through the Agents under this Agreement and any Terms Agreement, the Amended and Restated Alternative Distribution Agreements and any Terms Agreements and Alternative Terms Agreements, and the gross and net proceeds to the Company from the sale of the Shares and the compensation paid by the Company with respect to sales of the Shares pursuant to this Agreement during the relevant quarter oror such shorter period determined by the Company, in as the case of an Annual Report on Form 10-K, during the fiscal year covered by such Annual Report and the fourth quarter of such fiscal yearmay be. All opinions, letters and other documents referred to in Sections 6(b) through (de) above shall be reasonably satisfactory in form and substance to the Subject AgentJPMS. The Subject Agent JPMS will provide the Company with such notice (which may be oral, and in such case, will be confirmed via e-mail or facsimile as soon as reasonably practicable thereafter) as is reasonably practicable under the circumstances when requesting an opinion, letter or other document referred to in Sections 6(b) through (de) above.
Appears in 1 contract
Additional Covenants of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, further covenant and agree with the Subject Agent Agent, the Forward Seller and the Forward Purchaser as follows:
(a) Each Transaction Proposal made by the Company that is accepted by the Subject Agent by means of a Transaction Acceptance, each Placement Notice or Forward Acceptance that is delivered by the Company and each execution and delivery by the Company of a Terms Agreement shall be deemed to be (i) an affirmation that the representations, warranties and agreements of the Company and the Operating Partnership herein contained and contained in any certificate delivered to the Subject Agent Agent, the Forward Seller and the Forward Purchaser pursuant hereto are true and correct at such Time of Acceptance or the date of such Terms Agreement, as the case may be, and (ii) an undertaking that such representations, warranties and agreements will be true and correct on any applicable Time of Sale and Settlement Date, as though made at and as of each such time (it being understood that such representations, warranties and agreements shall relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of such Transaction Acceptance, Placement Notice, Forward Acceptance or Terms Agreement, as the case may be).
(b) Each time that (i) the Registration Statement, Statement or the Prospectus or any Permitted Free Writing Prospectus shall be amended or supplemented (including, except as noted in the proviso at the end of this Section 6(b), by the filing of any Incorporated Document), (ii) the Company files an annual report on Form 10-K or a quarterly report on Form 10-Q under the Exchange Act, (iii) the Company files a report on Form 8-K under the Exchange Act containing amended Company financial information (excluding information “furnished” but not filed), (iv) there is a Principal Settlement Date pursuant to a Terms Agreement, or (iiiv) otherwise as the Subject Agent Agent, the Forward Seller or the Forward Purchaser shall reasonably request (provided that the Company may decline to comply with any request pursuant to this clause (iiiv) unless such request is delivered at any time (Iw) during a Forward Hedge Selling Period, (x) during which a Transaction Acceptance is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein), (IIy) during which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or (IIIz) during any period beginning on and including the first day of a Terms Agreement through and including the related Settlement Date) (each date referred to clauses (i), (ii), (iii), (iv) and (iiiv) above, a “Bring-Down Delivery Date”), the Company shall, except during a Suspension Period as provided in Section 4(t) hereof or unless the Subject Agent or the Forward Seller, as applicable, agrees otherwise, furnish or cause to be furnished to the Subject Agent or the Forward Seller, as applicable, a certificate, dated as of such Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the certificate referred to in Section 5(a)(i) hereof, modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificates or, in lieu of such certificate, a certificate to the effect that the statements contained in the certificate referred to in Section 5(a)(i) hereof furnished to Subject Agent are true and correct as form of such Bring-Down Delivery Date as though made at and as of such date (except that such statements shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificate)Exhibit B hereto; provided, however, that the filing of a Current Report on Form 8-K will not constitute a Bring-Down Delivery Date unless (A) (x) such Current Report on Form 8-K is filed at any time during which either a Transaction Acceptance is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein) or a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or such Current Report on Form 8-K is filed at any time from and including the date of a Terms Agreement through and including the related Settlement Date and (y) the Subject Agent has reasonably requested that such date be deemed to be a Bring-Down Delivery Date based upon the event or events reported in such Current Report on Form 8-K, or (B) such Current Report on Form 8-K contains capsule financial information, historical or pro forma financial statements, supporting schedules or other financial data, including any Current Report on Form 8-K or part thereof under Item 2.02 of Regulation S-K of the Commission that is considered “filed” under the Exchange Act but, for the avoidance of doubt, excluding any Current Report on Form 8-K or any part thereof under Item 2.02 or 7.01 of such Regulation S-K that is “furnished” under the Exchange Act; and provided, further, that an amendment or supplement to the Registration Statement or the Prospectus providing solely for the determination of the terms of the Shares (other than Shares to be offered or sold pursuant to this Agreement or any Terms Agreement) or relating to the a different offering of other securities pursuant to the Registration Statement will not constitute a Bring-Down Delivery Date.
(c) Each On each Bring-Down Delivery Date, the Company shall, except during a Suspension Period as provided in Section 4(t) hereof or unless the Subject Agent agrees Agent, the Forward Seller and the Forward Purchaser each agree otherwise, cause to be furnished to Subject Agent Agent, the Forward Seller and the Forward Purchaser (A) the written opinion and, if not included in such opinion, negative assurance letter of Baker, Donelson, Bearman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, PCLovells US LLP, counsel to the Company, each dated as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, dated and delivered on such Principal Settlement Date, of the same tenor as the opinion and letter referred to in Section 5(a)(ii5(a)(i) hereof, but modified as necessary to relate to the Registration Statement, the Prospectus or Prospectus, any Permitted Free Writing Prospectus and the General Disclosure Package as amended and supplemented to the time of delivery of such opinions and letter, or, in lieu of such opinion and letter, such counsel shall furnish the Subject Agent Agent, the Forward Seller and the Forward Purchaser with a letter substantially to the effect that each of the Subject Agent Agent, the Forward Seller and the Forward Purchaser may rely on the opinion and letter referred to in Section 5(a)(ii5(a)(i), furnished to the Subject Agent, the Forward Seller and the Forward Purchaser, to the same extent as though they were dated the date of such letter authorizing reliance (except that statements in such last opinion and letter shall be deemed to relate to the Registration Statement, the Prospectus or Prospectus, any Permitted Free Writing Prospectus and the General Disclosure Package as amended and supplemented to the time of delivery of such letters authorizing reliance).
(d) Each On each Bring-Down Delivery Date, except during a Suspension Period as provided in Section 4(t) hereof or unless the Subject Agent, the Forward Seller and the Forward Purchaser each agree otherwise, (A) the Subject Agent, the Forward Seller and the Forward Purchaser shall be furnished the written opinion of ▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Subject Agent, the Forward Seller and the Forward Purchaser, dated as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, dated and delivered on such Principal Settlement Date, of the same tenor as the opinion referred to in Section 5(b) hereof, but modified as necessary to relate to the Registration Statement, the Prospectus, any Permitted Free Writing Prospectus and the General Disclosure Package as amended and supplemented to the time of delivery of such opinions and letter, or, (B) in lieu of such opinion and letter, such counsel shall furnish the Subject Agent, the Forward Seller and the Forward Purchaser with a letter substantially to the effect that each of the Subject Agent, the Forward Seller and the Forward Purchaser may rely on the opinion referred to in Section 5(b), furnished to the Subject Agent, the Forward Seller and the Forward Purchaser, to the same extent as though they were dated the date of such letter authorizing reliance (except that statements in such last opinion and letter shall be deemed to relate to the Registration Statement, the Prospectus, any Permitted Free Writing Prospectus and the General Disclosure Package as amended and supplemented to the time of delivery of such letters authorizing reliance).
(e) On each Bring-Down Delivery Date, the Company shall, except during a Suspension Period as provided in Section 4(t) hereof or unless the Subject Agent agrees Agent, the Forward Seller and the Forward Purchaser each agree otherwise, cause each of Ernst Deloitte & Young Touche LLP to furnish to the Subject Agent a Agent, the Forward Seller and the Forward Purchaser one or more “comfort” letterletters, dated as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the respective letters referred to in Section 5(a)(iii5(a)(ii) hereof, but modified to relate to the Registration Statement, the Prospectus or Prospectus, any Permitted Free Writing Prospectus and the General Disclosure Package as amended and supplemented to the date of such letter, and, if the Registration Statement, the Prospectus or Prospectus, any Permitted Free Writing Prospectus and the General Disclosure Package shall include or incorporate by reference the financial statements of any entity or business (other than the Company and its subsidiaries), or any properties or assets, the Company shall, if requested by the Subject Agent, the Forward Seller or the Forward Purchaser, cause a firm of independent public accountants to furnish to the Subject Agent a “comfort” letter, dated as of the applicable Bring-Down Delivery Date and delivered as promptly as practicable after the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, addressing such matters as the Subject Agent Agent, the Forward Seller or the Forward Purchaser may reasonably request.
(ef) (i) No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Act shall be pending before or threatened by the Commission; the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); and all requests by the Commission for additional information shall have been complied with to the satisfaction of the Subject Agent Agent, the Forward Seller and the Forward Purchaser and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes, shall have occurred and be in effect at the time the Company delivers a Transaction Proposal to the Subject Agent or a Placement Notice or Forward Acceptance to the Forward Seller and the Forward Purchaser or the time the Subject Agent delivers a Transaction Acceptance to the CompanyCompany or the Forward Seller and the Forward Purchaser accept a Placement Notice; and (ii) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, therein not misleading at the time the Company delivers a Transaction Proposal to the Subject Agent or a Placement Notice or Forward Acceptance to the Forward Seller and the Forward Purchaser or the time the Subject Agent delivers a Transaction Acceptance to the CompanyCompany or the Forward Seller and the Forward Purchaser accept a Placement Notice.
(fg) The Company shall reasonably cooperate with any reasonable due diligence review requested by the Subject Agent Agent, the Forward Seller or its counsel the Forward Purchaser, or their respective counsel, from time to time in connection with the transactions contemplated hereby or any Terms Agreement, including, without limitation, (i) at the commencement of each intended Purchase Date and any Time of Sale or Settlement Date, making available appropriate corporate officers of the Company and, upon reasonable request, representatives of Ernst Deloitte & Young LLP and, as applicable, Deloitte and Touche LLP for an update on diligence matters with representatives of the Subject Agent Agent, the Forward Seller and the Forward Purchaser and (ii) except during a Suspension Period as provided in Section 4(t) hereof, at each Bring-Down Delivery Date or otherwise as the Subject Agent Agent, the Forward Seller or the Forward Purchaser may reasonably request, providing information and making available documents and appropriate corporate officers of the Company and representatives of Ernst Deloitte & Young LLP and, as applicable, Deloitte and Touche LLP for one or more due diligence sessions with representatives of the Subject Agent Agent, the Forward Seller and its the Forward Purchaser and their respective counsel.
(gh) The Company shall disclose, in its Quarterly Reports on Form 10-Q and in its Annual Report on Form 10-K, the number of the Shares sold through the Agents under this Agreement, the Amended and Restated Alternative Distribution Agreements and any Terms Agreements and Alternative Terms Agreements, and the gross and net proceeds to the Company from the sale of the Shares during the relevant quarter or, in the case of an Annual Report on Form 10-K, during the fiscal year covered by such Annual Report and the fourth quarter of such fiscal year. All opinions, letters and other documents referred to in Sections 6(b) through (d) above this Section 6 shall be reasonably satisfactory in form and substance to the Subject Agent. The Subject Agent will provide , the Company with such notice (which may be oral, Forward Seller and in such case, will be confirmed via e-mail as soon as reasonably practicable thereafter) as is reasonably practicable under the circumstances when requesting an opinion, letter or other document referred to in Sections 6(b) through (d) above.the
Appears in 1 contract
Sources: Equity Distribution Agreement (Brixmor Operating Partnership LP)
Additional Covenants of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, further covenant and agree with the Subject Agent ▇▇▇▇▇ Fargo as follows:
(a) Each acceptance of a Transaction Proposal made Notice by the Company that is accepted by the Subject Agent by means of a Transaction Acceptance and each execution and delivery by the Company of a Terms Agreement shall be deemed to be (i) an affirmation that the representations, warranties and agreements of the Company and the Operating Partnership herein contained and contained in any certificate delivered to the Subject Agent ▇▇▇▇▇ Fargo pursuant hereto are true and correct at such Time of Acceptance or the date of such Terms Agreement, as the case may be, and (ii) an undertaking that such representations, warranties and agreements will be true and correct on any applicable Time of Sale and Settlement Date, as though made at and as of each such time (it being understood that such representations, warranties and agreements shall relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of such Transaction Acceptance Notice or Terms Agreement, as the case may be).
(b) Each time that (i) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall be amended or supplemented (including, except as noted in the proviso at the end of this Section 6(b), by the filing of any Incorporated Document, but excluding any prospectus supplement filed pursuant to Section 4(b) hereof), (ii) there is a Principal Settlement Date pursuant to a Terms Agreement, or (iii) otherwise as the Subject Agent ▇▇▇▇▇ Fargo shall reasonably request, provided that ▇▇▇▇▇ Fargo shall not make such a request (provided during periods that the Company may decline is not proposing Agency Transactions to comply with any request pursuant to this clause (iii) unless such request is delivered at any time (I) during which a Transaction Acceptance is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein), (II) during which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or (III) during any period beginning on and including the first day of a Terms Agreement through and including the related Settlement Date) ▇▇▇▇▇ Fargo (each date referred to clauses (i), (ii) and (iii) above, a “Bring-Down Delivery Date”), the Company shall, unless the Subject Agent ▇▇▇▇▇ Fargo agrees otherwise, furnish or cause to be furnished to the Subject Agent ▇▇▇▇▇ Fargo a certificate, dated as of such Bring-Down Delivery Date and delivered within three Exchange Business Days as of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the certificate referred to in Section 5(a)(i(a)(i) hereof, modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificates certificate, or, in lieu of such certificate, a certificate to the effect that the statements contained in the certificate referred to in Section 5(a)(i) hereof furnished to Subject Agent ▇▇▇▇▇ Fargo are true and correct as of such Bring-Down Delivery Date as though made at and as of such date (except that such statements shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificate); provided, however, that the filing of a Current Report on Form 8-K will not constitute a Bring-Down Delivery Date unless (A) (x) such Current Report on Form 8-K is filed at any time during which either a Transaction Acceptance Notice is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein) or a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or such Current Report on Form 8-K is filed at any time from and including the date of a Terms Agreement through and including the related Settlement Date and (y) the Subject Agent ▇▇▇▇▇ Fargo has reasonably requested that such date be deemed to be a Bring-Down Delivery Date based upon the reasonable judgment of ▇▇▇▇▇ Fargo that the event or events reported in such Current Report on Form 8-KK has a material adverse effect on the condition, financial or otherwise, or the earnings, assets or business affairs or prospects of the Operating Partnership, Company and their Subsidiaries, taken as a whole, or on the in service properties owned, directly or indirectly, by the Company taken as a whole at such time, or otherwise restates historical financial statements or contains financial statements required by Rules 3-05 or 3-14 of Regulation S-X or (B) such Current Report on Form 8-K contains capsule financial information, historical or pro forma financial statements, supporting schedules or other financial data, including any Current Report on Form 8-K or part thereof under Item 2.02 of Regulation S-K of the Commission that is considered “filed” under the Exchange Act but, for the avoidance of doubt, excluding any Current Report on Form 8-K or any part thereof under Item 2.02 or 7.01 of such Regulation S-K that is “furnished” under the Exchange Act; and provided, further, that an amendment or supplement to the Registration Statement or the Prospectus providing solely for the determination of the terms of the Shares (other than Shares to be offered or sold required pursuant to this Agreement or any Terms Agreement) or relating to the offering of other securities pursuant to the Registration Statement will not constitute a Bring-Down Delivery DateSection 2(i).
(c) Each Bring-Down Delivery Date, the Company shall, unless the Subject Agent ▇▇▇▇▇ Fargo agrees otherwise, cause to be furnished to Subject Agent ▇▇▇▇▇ Fargo (A) the written opinion and, if not included in such opinion, opinions and negative assurance letter of Baker, Donelson, Bearman, Barack ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ LLP, PCcounsel to the Company and of McGuireWoods LLP, special Maryland counsel to the Company, each dated and delivered as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, dated and delivered on such Principal Settlement Date, of the same tenor as the opinion opinions and letter referred to in Section Sections 5(a)(ii) and 5(a)(iii) hereof, respectively, but modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such opinions and letter, or, in lieu of such opinion opinions and letter, such counsel and Maryland counsel shall furnish the Subject Agent ▇▇▇▇▇ Fargo with a letter letters substantially to the effect that the Subject Agent ▇▇▇▇▇ Fargo may rely on the opinion opinions and letter referred to in Section Sections 5(a)(ii) and 5(a)(iii), furnished to the Subject Agent▇▇▇▇▇ Fargo, to the same extent as though they were dated the date of such letter letters authorizing reliance (except that statements in such last opinion and letter opinions shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such letters authorizing reliance).
(d) Each Bring-Down Delivery Date, the Company shall, unless the Subject Agent ▇▇▇▇▇ Fargo agrees otherwise, cause each of Ernst & Young PricewatershouseCoopers LLP to furnish to the Subject Agent ▇▇▇▇▇ Fargo a “comfort” letter, dated and delivered as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the respective letters letter referred to in Section 5(a)(iii5(a)(iv) hereof, but modified to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the date of such letter.
(e) Each Bring-Down Delivery Date, and▇▇▇▇▇ Fargo may request an opinion and negative assurance letter of ▇▇▇▇▇▇▇▇ Chance US LLP, if counsel to the Agents, addressed to the Agents, dated and delivered as of the applicable Bring-Down Delivery Date, of the same tenor as the opinion and negative assurance letter referred to in Section 5(b) hereof, but modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall include or incorporate by reference the financial statements of any entity or business (other than the Company as amended and its subsidiaries), or any properties or assets, the Company shall, if requested by the Subject Agent, cause a firm of independent public accountants to furnish supplemented to the Subject Agent a “comfort” time of delivery of such opinion and letter, dated as of the applicable Bring-Down Delivery Date and delivered as promptly as practicable after the applicable Bring-Down Delivery Date or, in lieu of such opinion and letter, such counsel shall furnish ▇▇▇▇▇ Fargo with a letter substantially to the case effect that ▇▇▇▇▇ Fargo may rely on the opinion and letter referred to in Sections 5(b), furnished to ▇▇▇▇▇ Fargo, to the same extent as though they were dated the date of a Bring-Down Delivery Date resulting from a Principal Settlement Datesuch letter authorizing reliance (except that statements in such last opinion shall be deemed to relate to the Registration Statement, delivered on the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such Principal Settlement Date, addressing such matters as the Subject Agent may reasonably requestletter authorizing reliance).
(e) (i) No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Act shall be pending before or threatened by the CommissionCommission at the time the Company accepts a Transaction Notice; the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); and all requests by the Commission for additional information shall have been complied with to the satisfaction of the Subject Agent ▇▇▇▇▇ Fargo and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes, shall will have occurred and be in effect at the time the Company delivers accepts a Transaction Proposal to the Subject Agent or the time the Subject Agent delivers a Transaction Acceptance to the Company; Notice and (ii) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time the Company delivers accepts a Transaction Proposal to the Subject Agent or the time the Subject Agent delivers a Transaction Acceptance to the CompanyNotice.
(fg) The Company shall reasonably cooperate with any reasonable due diligence review requested by the Subject Agent ▇▇▇▇▇ Fargo or its counsel from time to time in connection with the transactions contemplated hereby or any Terms Agreement, including, without limitation, (i) at the commencement of each intended Purchase Date and any Time of Sale or Settlement Date, making available appropriate corporate officers of the Company and, upon reasonable request, representatives of Ernst & Young LLP and, as applicable, Deloitte and Touche PricewatershouseCoopers LLP for an update on diligence matters with representatives of the Subject Agent ▇▇▇▇▇ Fargo and (ii) at each Bring-Down Delivery Date or otherwise as the Subject Agent ▇▇▇▇▇ Fargo may reasonably request, providing information and making available documents and appropriate corporate officers of the Company and representatives of Ernst & Young LLP and, as applicable, Deloitte and Touche PricewatershouseCoopers LLP for one or more due diligence sessions with representatives of the Subject Agent ▇▇▇▇▇ Fargo and its counsel.
(gh) The Company shall disclose, in its Quarterly Reports quarterly reports on Form 10-Q and Q, in its Annual Report annual report on Form 10-KK and, if requested by ▇▇▇▇▇ Fargo, in prospectus supplements to be filed by the Company from time to time, including in accordance with Section 4(b), the number of the Shares sold through the Agents under this Agreement and any Terms Agreement, the Amended and Restated Alternative Distribution Agreements and any Terms Agreements and Alternative Terms Agreements, and the gross and net proceeds to the Company from the sale of the Shares and the compensation paid by the Company with respect to sales of the Shares pursuant to this Agreement during the relevant quarter oror such shorter period determined by the Company, in as the case of an Annual Report on Form 10-K, during the fiscal year covered by such Annual Report and the fourth quarter of such fiscal yearmay be. All opinions, letters and other documents referred to in Sections 6(b) through (de) above shall be reasonably satisfactory in form and substance to the Subject Agent▇▇▇▇▇ Fargo. The Subject Agent ▇▇▇▇▇ Fargo will provide the Company with such notice (which may be oral, and in such case, will be confirmed via e-mail or facsimile as soon as reasonably practicable thereafter) as is reasonably practicable under the circumstances when requesting an opinion, letter or other document referred to in Sections 6(b) through (de) above.
Appears in 1 contract
Additional Covenants of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, further covenant and agree with the Subject Agent ▇▇▇▇▇ Fargo as follows:
(a) Each acceptance of a Transaction Proposal made Notice by the Company that is accepted by the Subject Agent by means of a Transaction Acceptance and each execution and delivery by the Company of a Terms Agreement shall be deemed to be (i) an affirmation that the representations, warranties and agreements of the Company and the Operating Partnership herein contained and contained in any certificate delivered to the Subject Agent ▇▇▇▇▇ Fargo pursuant hereto are true and correct at such Time of Acceptance or the date of such Terms Agreement, as the case may be, and (ii) an undertaking that such representations, warranties and agreements will be true and correct on any applicable Time of Sale and Settlement Date, as though made at and as of each such time (it being understood that such representations, warranties and agreements shall relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of such Transaction Acceptance Notice or Terms Agreement, as the case may be).
(b) Each time that (i) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall be amended or supplemented (including, except as noted in the proviso at the end of this Section 6(b), by the filing of any Incorporated Document, but excluding any prospectus supplement filed pursuant to Section 4(b) hereof), (ii) there is a Principal Settlement Date pursuant to a Terms Agreement, or (iii) otherwise as the Subject Agent ▇▇▇▇▇ Fargo shall reasonably request, provided that ▇▇▇▇▇ Fargo shall not make such a request (provided during periods that the Company may decline is not proposing Agency Transactions to comply with any request pursuant to this clause (iii) unless such request is delivered at any time (I) during which a Transaction Acceptance is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein), (II) during which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act ▇▇▇▇▇ Fargo or any similar rule) or (III) during any period beginning on and including the first day of a Terms Agreement through and including the related Settlement Date) Alternative Agent (each date referred to clauses (i), (ii) and (iii) above, a “Bring-Down Delivery Date”), the Company shall, unless the Subject Agent ▇▇▇▇▇ Fargo agrees otherwise, furnish or cause to be furnished to the Subject Agent ▇▇▇▇▇ Fargo a certificate, dated as of such Bring-Down Delivery Date and delivered within three Exchange Business Days as of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the certificate referred to in Section 5(a)(i(a)(i) hereof, modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificates certificate, or, in lieu of such certificate, a certificate to the effect that the statements contained in the certificate referred to in Section 5(a)(i) hereof furnished to Subject Agent ▇▇▇▇▇ Fargo are true and correct as of such Bring-Down Delivery Date as though made at and as of such date (except that such statements shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificate); provided, however, that the filing of a Current Report on Form 8-K will not constitute a Bring-Down Delivery Date unless (A) (x) such Current Report on Form 8-K is filed at any time during which either a Transaction Acceptance Notice is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein) or a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or such Current Report on Form 8-K is filed at any time from and including the date of a Terms Agreement through and including the related Settlement Date and (y) the Subject ▇▇▇▇▇ Fargo or any Alternative Agent has reasonably requested that such date be deemed to be a Bring-Down Delivery Date based upon the reasonable judgment of ▇▇▇▇▇ Fargo or such Alternative Agent that the event or events reported in such Current Report on Form 8-KK has a Material Adverse Effect on the condition, financial or otherwise, or the earnings, assets or business affairs or prospects of the Operating Partnership, Company and their Subsidiaries, taken as a whole, or on the in service properties owned, directly or indirectly, by the Company taken as a whole at such time, or otherwise restates historical financial statements or contains financial statements required by Rules 3-05 or 3-14 of Regulation S-X or (B) such Current Report on Form 8-K contains capsule financial information, historical or pro forma financial statements, supporting schedules or other financial data, including any Current Report on Form 8-K or part thereof under Item 2.02 of Regulation S-K of the Commission that is considered “filed” under the Exchange Act but, for the avoidance of doubt, excluding any Current Report on Form 8-K or any part thereof under Item 2.02 or 7.01 of such Regulation S-K that is “furnished” under the Exchange Act; and provided, further, that an amendment or supplement to the Registration Statement or the Prospectus providing solely for the determination of the terms of the Shares (other than Shares to be offered or sold required pursuant to this Agreement or any Terms Agreement) or relating Section 2(i). Notwithstanding the foregoing, if the Company subsequently decides to the offering of other securities pursuant to the Registration Statement will not constitute sell Shares following a Bring-Down Delivery DateDate when the Company did not furnish or cause to be furnished to ▇▇▇▇▇ Fargo and each of the Alternative Agents a certificate under this Section 6(b) and Section 6(b) of the Alternative Sales Agreements, then before the Company delivers a Transaction Notice or ▇▇▇▇▇ Fargo or any of the Alternative Agents conducts any sales pursuant to this Agreement, any Terms Agreement, any Alternative Distribution Agreement or any Alternative Terms Agreement, the Company shall first furnish or cause to be furnished to ▇▇▇▇▇ Fargo such certificate under this Section 6(b), dated the date of the Sales Notice.
(c) Each Bring-Down Delivery Date, the Company shall, unless the Subject Agent ▇▇▇▇▇ Fargo agrees otherwise, cause to be furnished to Subject Agent ▇▇▇▇▇ Fargo (A) the written opinion and, if not included in such opinion, opinions and negative assurance letter of Baker, Donelson, Bearman, Barack ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ LLP, PCcounsel to the Company and of McGuireWoods LLP, special Maryland counsel to the Company, each dated and delivered as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, dated and delivered on such Principal Settlement Date, of the same tenor as the opinion opinions and letter referred to in Section Sections 5(a)(ii) and 5(a)(iii) hereof, respectively, but modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such opinions and letter, or, in lieu of such opinion opinions and letter, such counsel and Maryland counsel shall furnish the Subject Agent ▇▇▇▇▇ Fargo with a letter letters substantially to the effect that the Subject Agent ▇▇▇▇▇ Fargo may rely on the opinion opinions and letter referred to in Section Sections 5(a)(ii) and 5(a)(iii), furnished to the Subject Agent▇▇▇▇▇ Fargo, to the same extent as though they were dated the date of such letter letters authorizing reliance (except that statements in such last opinion and letter opinions shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such letters authorizing reliance). Notwithstanding the foregoing, if the Company subsequently decides to sell Shares following a Bring-Down Delivery Date when the Company did not furnish or cause to be furnished to ▇▇▇▇▇ Fargo and each of the Alternative Agents the opinions and letter under this Section 6(c) and Section 6(c) of the Alternative Sales Agreements, then before the Company delivers a Transaction Notice or ▇▇▇▇▇ Fargo or any of the Alternative Agents conducts any sales pursuant to this Agreement, any Terms Agreement, any Alternative Distribution Agreement or any Alternative Terms Agreement, the Company shall first furnish or cause to be furnished to ▇▇▇▇▇ Fargo such opinions and letter under this Section 6(c), dated the date of the Sales Notice.
(d) Each Bring-Down Delivery Date, the Company shall, unless the Subject Agent ▇▇▇▇▇ Fargo agrees otherwise, cause each of Ernst & Young PricewatershouseCoopers LLP to furnish to the Subject Agent ▇▇▇▇▇ Fargo a “comfort” letter, dated and delivered as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the respective letters letter referred to in Section 5(a)(iii5(a)(iv) hereof, but modified to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the date of such letter, and. Notwithstanding the foregoing, if the Company subsequently decides to sell Shares following a Bring-Down Delivery Date when the Company did not furnish or cause to be furnished to ▇▇▇▇▇ Fargo and each of the Alternative Agents the “comfort” letter under this Section 6(d) and Section 6(d) of the Alternative Sales Agreements, then before the Company delivers a Transaction Notice or ▇▇▇▇▇ Fargo or any of the Alternative Agents conducts any sales pursuant to this Agreement, any Terms Agreement, any Alternative Distribution Agreement or any Alternative Terms Agreement, the Company shall first furnish or cause to be furnished to ▇▇▇▇▇ Fargo such “comfort” letter under this Section 6(d), dated the date of the Sales Notice.
(e) Each Bring-Down Delivery Date, ▇▇▇▇▇ Fargo may request an opinion and negative assurance letter of ▇▇▇▇▇▇▇▇ Chance US LLP, counsel to the Agents, addressed to the Agents, dated and delivered as of the applicable Bring-Down Delivery Date, of the same tenor as the opinion and negative assurance letter referred to in Section 5(b) hereof, but modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall include or incorporate by reference the financial statements of any entity or business (other than the Company as amended and its subsidiaries), or any properties or assets, the Company shall, if requested by the Subject Agent, cause a firm of independent public accountants to furnish supplemented to the Subject Agent a “comfort” time of delivery of such opinion and letter, dated as of the applicable Bring-Down Delivery Date and delivered as promptly as practicable after the applicable Bring-Down Delivery Date or, in lieu of such opinion and letter, such counsel shall furnish ▇▇▇▇▇ Fargo with a letter substantially to the case effect that ▇▇▇▇▇ Fargo may rely on the opinion and letter referred to in Sections 5(b), furnished to ▇▇▇▇▇ Fargo, to the same extent as though they were dated the date of a Bring-Down Delivery Date resulting from a Principal Settlement Datesuch letter authorizing reliance (except that statements in such last opinion shall be deemed to relate to the Registration Statement, delivered on the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such Principal Settlement Date, addressing such matters as the Subject Agent may reasonably requestletter authorizing reliance).
(e) (i) No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Act shall be pending before or threatened by the CommissionCommission at the time the Company accepts a Transaction Notice; the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); and all requests by the Commission for additional information shall have been complied with to the satisfaction of the Subject Agent ▇▇▇▇▇ Fargo and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes, shall will have occurred and be in effect at the time the Company delivers accepts a Transaction Proposal to the Subject Agent or the time the Subject Agent delivers a Transaction Acceptance to the Company; Notice and (ii) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time the Company delivers accepts a Transaction Proposal to the Subject Agent or the time the Subject Agent delivers a Transaction Acceptance to the CompanyNotice.
(fg) The Company shall reasonably cooperate with any reasonable due diligence review requested by the Subject Agent ▇▇▇▇▇ Fargo or its counsel from time to time in connection with the transactions contemplated hereby or any Terms Agreement, including, without limitation, (i) at the commencement of each intended Purchase Date and any Time of Sale or Settlement Date, making available appropriate corporate officers of the Company and, upon reasonable request, representatives of Ernst & Young LLP and, as applicable, Deloitte and Touche PricewatershouseCoopers LLP for an update on diligence matters with representatives of the Subject Agent ▇▇▇▇▇ Fargo and (ii) at each Bring-Down Delivery Date (including at such times as set forth in the final sentence of each of Sections 6(b) through (d)) or otherwise as the Subject Agent ▇▇▇▇▇ Fargo may reasonably request, providing information and making available documents and appropriate corporate officers of the Company and representatives of Ernst & Young LLP and, as applicable, Deloitte and Touche PricewatershouseCoopers LLP for one or more due diligence sessions with representatives of the Subject Agent ▇▇▇▇▇ Fargo and its counsel.
(gh) The Company shall disclose, in its Quarterly Reports quarterly reports on Form 10-Q and Q, in its Annual Report annual report on Form 10-KK and, if requested by ▇▇▇▇▇ Fargo, in prospectus supplements to be filed by the Company from time to time, including in accordance with Section 4(b), the number of the Shares sold through the Agents under this Agreement and any Terms Agreement, the Amended and Restated Alternative Distribution Agreements and any Terms Agreements and Alternative Terms Agreements, and the gross and net proceeds to the Company from the sale of the Shares and the compensation paid by the Company with respect to sales of the Shares pursuant to this Agreement during the relevant quarter oror such shorter period determined by the Company, in as the case of an Annual Report on Form 10-K, during the fiscal year covered by such Annual Report and the fourth quarter of such fiscal yearmay be. All opinions, letters and other documents referred to in Sections 6(b) through (de) above shall be reasonably satisfactory in form and substance to the Subject Agent▇▇▇▇▇ Fargo. The Subject Agent ▇▇▇▇▇ Fargo will provide the Company with such notice (which may be oral, and in such case, will be confirmed via e-mail or facsimile as soon as reasonably practicable thereafter) as is reasonably practicable under the circumstances when requesting an opinion, letter or other document referred to in Sections 6(b) through (de) above.
Appears in 1 contract
Additional Covenants of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, further covenant and agree with the Subject Agent ▇▇▇▇▇ Fargo as follows:
(a) Each acceptance of a Transaction Proposal made Notice by the Company that is accepted by the Subject Agent by means of a Transaction Acceptance and each execution and delivery by the Company of a Terms Agreement shall be deemed to be (i) an affirmation that the representations, warranties and agreements of the Company and the Operating Partnership herein contained and contained in any certificate delivered to the Subject Agent ▇▇▇▇▇ Fargo pursuant hereto are true and correct at such Time of Acceptance or the date of such Terms Agreement, as the case may be, and (ii) an undertaking that such representations, warranties and agreements will be true and correct on any applicable Time of Sale and Settlement Date, as though made at and as of each such time (it being understood that such representations, warranties and agreements shall relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of such Transaction Acceptance Notice or Terms Agreement, as the case may be).
(b) Each time that (i) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall be amended or supplemented (including, except as noted in the proviso at the end of this Section 6(b), by the filing of any Incorporated Document, but excluding any prospectus supplement filed pursuant to Section 4(b) hereof), (ii) there is a Principal Settlement Date pursuant to a Terms Agreement, or (iii) otherwise as the Subject Agent ▇▇▇▇▇ Fargo shall reasonably request, provided that ▇▇▇▇▇ Fargo shall not make such a request (provided during periods that the Company may decline is not proposing Agency Transactions to comply with any request pursuant to this clause (iii) unless such request is delivered at any time (I) during which a Transaction Acceptance is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein), (II) during which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or (III) during any period beginning on and including the first day of a Terms Agreement through and including the related Settlement Date) ▇▇▇▇▇ Fargo (each date referred to clauses (i), (ii) and (iii) above, a “Bring-Down Delivery Date”), the Company shall, unless the Subject Agent ▇▇▇▇▇ Fargo agrees otherwise, furnish or cause to be furnished to the Subject Agent ▇▇▇▇▇ Fargo a certificate, dated as of such Bring-Down Delivery Date and delivered within three Exchange Business Days as of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the certificate referred to in Section 5(a)(i(a)(i) hereof, modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificates certificate, or, in lieu of such certificate, a certificate to the effect that the statements contained in the certificate referred to in Section 5(a)(i) hereof furnished to Subject Agent ▇▇▇▇▇ Fargo are true and correct as of such Bring-Down Delivery Date as though made at and as of such date (except that such statements shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificate); provided, however, that the filing of a Current Report on Form 8-K will not constitute a Bring-Down Delivery Date unless (A) (x) such Current Report on Form 8-K is filed at any time during which either a Transaction Acceptance Notice is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein) or a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or such Current Report on Form 8-K is filed at any time from and including the date of a Terms Agreement through and including the related Settlement Date and (y) the Subject Agent ▇▇▇▇▇ Fargo has reasonably requested that such date be deemed to be a Bring-Down Delivery Date based upon the reasonable judgment of ▇▇▇▇▇ Fargo that the event or events reported in such Current Report on Form 8-KK has a material adverse effect on the condition, financial or otherwise, or the earnings, assets or business affairs or prospects of the Operating Partnership, Company and their Subsidiaries, taken as a whole, or on the in service properties owned, directly or indirectly, by the Company taken as a whole at such time, or otherwise restates historical financial statements or contains financial statements required by Rules 3-05 or 3-14 of Regulation S-X or (B) such Current Report on Form 8-K contains capsule financial information, historical or pro forma financial statements, supporting schedules or other financial data, including any Current Report on Form 8-K or part thereof under Item 2.02 of Regulation S-K of the Commission that is considered “filed” under the Exchange Act but, for the avoidance of doubt, excluding any Current Report on Form 8-K or any part thereof under Item 2.02 or 7.01 of such Regulation S-K that is “furnished” under the Exchange Act; and provided, further, that an amendment or supplement to the Registration Statement or the Prospectus providing solely for the determination of the terms of the Shares (other than Shares to be offered or sold required pursuant to this Agreement or any Terms Agreement) or relating to the offering of other securities pursuant to the Registration Statement will not constitute a Bring-Down Delivery DateSection 2(i).
(c) Each Bring-Down Delivery Date, the Company shall, unless the Subject Agent ▇▇▇▇▇ Fargo agrees otherwise, cause to be furnished to Subject Agent ▇▇▇▇▇ Fargo (A) the written opinion and, if not included in such opinion, opinions and negative assurance letter of Baker, Donelson, Bearman, Barack ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ LLP, PCcounsel to the Company and of McGuireWoods LLP, special Maryland counsel to the Company, each dated and delivered as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, dated and delivered on such Principal Settlement Date, of the same tenor as the opinion opinions and letter referred to in Section Sections 5(a)(ii) and 5(a)(iii) hereof, respectively, but modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such opinions and letter, or, in lieu of such opinion opinions and letter, such counsel and Maryland counsel shall furnish the Subject Agent ▇▇▇▇▇ Fargo with a letter letters substantially to the effect that the Subject Agent ▇▇▇▇▇ Fargo may rely on the opinion opinions and letter referred to in Section Sections 5(a)(ii) and 5(a)(iii), furnished to the Subject Agent▇▇▇▇▇ Fargo, to the same extent as though they were dated the date of such letter letters authorizing reliance (except that statements in such last opinion and letter opinions shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such letters authorizing reliance).
(d) Each Bring-Down Delivery Date, the Company shall, unless the Subject Agent ▇▇▇▇▇ Fargo agrees otherwise, cause each of Ernst & Young PricewatershouseCoopers LLP to furnish to the Subject Agent ▇▇▇▇▇ Fargo a “comfort” letter, dated and delivered as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the respective letters letter referred to in Section 5(a)(iii5(a)(iv) hereof, but modified to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the date of such letter, and, if the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall include or incorporate by reference the financial statements of any entity or business (other than the Company and its subsidiaries), or any properties or assets, the Company shall, if requested by the Subject Agent, cause a firm of independent public accountants to furnish to the Subject Agent a “comfort” letter, dated as of the applicable Bring-Down Delivery Date and delivered as promptly as practicable after the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, addressing such matters as the Subject Agent may reasonably request.
(e) (i) No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Act shall be pending before or threatened by the CommissionCommission at the time the Company accepts a Transaction Notice; the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); and all requests by the Commission for additional information shall have been complied with to the satisfaction of the Subject Agent ▇▇▇▇▇ Fargo and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes, shall will have occurred and be in effect at the time the Company delivers accepts a Transaction Proposal to the Subject Agent or the time the Subject Agent delivers a Transaction Acceptance to the CompanyNotice; and (ii) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time the Company delivers accepts a Transaction Proposal to the Subject Agent or the time the Subject Agent delivers a Transaction Acceptance to the CompanyNotice.
(f) The Company shall reasonably cooperate with any reasonable due diligence review requested by the Subject Agent ▇▇▇▇▇ Fargo or its counsel from time to time in connection with the transactions contemplated hereby or any Terms Agreement, including, without limitation, (i) at the commencement of each intended Purchase Date and any Time of Sale or Settlement Date, making available appropriate corporate officers of the Company and, upon reasonable request, representatives of Ernst & Young LLP and, as applicable, Deloitte and Touche PricewatershouseCoopers LLP for an update on diligence matters with representatives of the Subject Agent ▇▇▇▇▇ Fargo and (ii) at each Bring-Down Delivery Date or otherwise as the Subject Agent ▇▇▇▇▇ Fargo may reasonably request, providing information and making available documents and appropriate corporate officers of the Company and representatives of Ernst & Young LLP and, as applicable, Deloitte and Touche PricewatershouseCoopers LLP for one or more due diligence sessions with representatives of the Subject Agent ▇▇▇▇▇ Fargo and its counsel.
(g) The Company shall disclose, in its Quarterly Reports quarterly reports on Form 10-Q and Q, in its Annual Report annual report on Form 10-KK and, if requested by ▇▇▇▇▇ Fargo, in prospectus supplements to be filed by the Company from time to time, including in accordance with Section 4(b), the number of the Shares sold through the Agents under this Agreement and any Terms Agreement, the Amended and Restated Alternative Distribution Agreements and any Terms Agreements and Alternative Terms Agreements, and the gross and net proceeds to the Company from the sale of the Shares and the compensation paid by the Company with respect to sales of the Shares pursuant to this Agreement during the relevant quarter oror such shorter period determined by the Company, in as the case of an Annual Report on Form 10-K, during the fiscal year covered by such Annual Report and the fourth quarter of such fiscal yearmay be. All opinions, letters and other documents referred to in Sections 6(b) through (d) above shall be reasonably satisfactory in form and substance to the Subject Agent▇▇▇▇▇ Fargo. The Subject Agent ▇▇▇▇▇ Fargo will provide the Company with such notice (which may be oral, and in such case, will be confirmed via e-mail or facsimile as soon as reasonably practicable thereafter) as is reasonably practicable under the circumstances when requesting an opinion, letter or other document referred to in Sections 6(b) through (d) above.
Appears in 1 contract
Sources: Distribution Agreement (First Industrial Realty Trust Inc)
Additional Covenants of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, further covenant and agree with the Subject Agent JPMS as follows:
(a) Each delivery of a Transaction Proposal made Notice by the Company that is accepted by the Subject Agent by means of a Transaction Acceptance and each execution and delivery by the Company of a Terms Agreement shall be deemed to be (i) an affirmation that the representations, warranties and agreements of the Company and the Operating Partnership herein contained and contained in any certificate delivered to the Subject Agent JPMS pursuant hereto are true and correct at such Time of Acceptance Delivery or the date of such Terms Agreement, as the case may be, and (ii) an undertaking that such representations, warranties and agreements will be true and correct on any applicable Time of Sale and Settlement Date, as though made at and as of each such time (it being understood that such representations, warranties and agreements shall relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of such Transaction Acceptance Notice or Terms Agreement, as the case may be).
(b) Each time that (i) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall be amended or supplemented (including, except as noted in the proviso at the end of this Section 6(b), by the filing of any Incorporated Document), or (ii) there is a Principal Settlement Date pursuant to a Terms Agreement, or (iii) otherwise as the Subject Agent JPMS shall reasonably request (on the advice of outside counsel and in accordance with past practice, provided that the Company may decline to comply with any JPMS shall not make such a request during periods that there is no proposed Agency Transaction pursuant to this clause (iii) unless such request is delivered at any time (I) during which delivery of a Transaction Acceptance is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein), (II) during which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or (III) during any period beginning on and including the first day of a Terms Agreement through and including the related Settlement Date) Notice (each date referred to clauses (i), (ii) and (iii) above, a “Bring-Down Delivery Date”), the Company and the Operating Partnership shall, unless the Subject Agent JPMS agrees otherwise, furnish or cause to be furnished to the Subject Agent JPMS a certificate, dated as of such Bring-Down Delivery Date and delivered within three Exchange Business Days as of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the certificate referred to in Section 5(a)(i) hereof, modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificates certificate, or, in lieu of such certificate, a certificate to the effect that the statements contained in the certificate referred to in Section 5(a)(i) hereof furnished to Subject Agent JPMS are true and correct as of such Bring-Down Delivery Date as though made at and as of such date (except that such statements shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificate); provided, however, that the filing of a Current Report on Form 8-K will not constitute a Bring-Down Delivery Date unless (A) (x) such Current Report on Form 8-K is filed at any time during which either a Transaction Acceptance is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein) or a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or such Current Report on Form 8-K is filed at any time from and including the date of a Terms Agreement through and including the related Settlement Date and (y) the Subject Agent JPMS has reasonably requested that such date be deemed to be a Bring-Down Delivery Date based upon the event or events reported in such Current Report on Form 8-K, K (within five Exchange Business Days of the filing thereof with the Commission) or (B) such Current Report on Form 8-K contains capsule financial information, historical or pro forma financial statements, supporting schedules or other financial data, including any Current Report on Form 8-K or part thereof under Item 2.02 of Regulation S-K of the Commission that is considered “filed” under the Exchange Act but, for the avoidance of doubt, excluding any Current Report on Form 8-K or any part thereof under Item 2.02 or 7.01 of such Regulation S-K that is “furnished” under the Exchange Act; and provided, further, that an amendment or supplement to the Registration Statement or the Prospectus providing solely for the determination of the terms of the Shares (other than Shares to be offered or sold required pursuant to this Agreement or any Terms Agreement) or relating to the offering of other securities pursuant to the Registration Statement will not constitute a Bring-Down Delivery DateSection 2(i).
(c) Each On each Bring-Down Delivery Date, the Company shall, unless the Subject Agent JPMS agrees otherwise, cause to be furnished to Subject Agent JPMS (A) the written opinion and, if not included in such opinion, and negative assurance letter statement of Baker, Donelson, Bearman, ▇▇▇▇▇▇▇▇ King & ▇▇▇▇▇▇▇▇▇, PCSpalding LLP, counsel to the Company, each dated and delivered as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, dated and delivered on such Principal Settlement Date, of the same tenor as the opinion and letter statement referred to in Section 5(a)(ii) hereof, respectively, but modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such opinions opinion and letterstatement, or, in lieu of such opinion and letterstatement, such counsel shall furnish the Subject Agent JPMS with a letter substantially to the effect that the Subject Agent JPMS may rely on the opinion and letter statement referred to in Section 5(a)(ii), furnished to the Subject AgentJPMS, to the same extent as though they were dated the date of such letter authorizing reliance (except that statements in such last opinion and letter shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such letters letter authorizing reliance).
(d) Each On each Bring-Down Delivery Date, the Company shall, unless the Subject Agent JPMS agrees otherwise, cause each of Ernst Deloitte & Young Touche LLP to furnish to the Subject Agent JPMS a “comfort” letter, dated and delivered as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the respective letters letter referred to in Section 5(a)(iii) hereof, but modified to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the date of such letter.
(e) On each Bring-Down Delivery Date, and, if to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall include or incorporate by reference the financial statements of any entity or business (other than the Company and its subsidiaries), or any properties or assetsextent required pursuant to Section 2(i) above, the Company shall, if requested by the Subject Agentunless JPMS agrees otherwise, cause to be furnished to JPMS a firm of independent public accountants to furnish to the Subject Agent a “comfort” letter, dated as certificate of the applicable Bring-Down Delivery Date and delivered as promptly as practicable after chief financial officer of the applicable Bring-Down Delivery Date or, in Company of the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, addressing such matters same tenor as the Subject Agent may reasonably requestcertificate referred to in Section 2(i).
(e) (i) No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Act shall be pending before or to the knowledge of the Company threatened by the Commission; the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); and all requests by the Commission for additional information shall have been complied with to the satisfaction of the Subject Agent JPMS and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes, shall will have occurred and be in effect at the time the Company delivers a Transaction Proposal to the Subject Agent or the time the Subject Agent delivers a Transaction Acceptance to the CompanyNotice; and (ii) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time the Company delivers a Transaction Proposal to the Subject Agent or the time the Subject Agent delivers a Transaction Acceptance to the CompanyNotice.
(fg) The Company shall reasonably cooperate with any reasonable due diligence review requested by the Subject Agent JPMS or its counsel from time to time in connection with the transactions contemplated hereby or any Terms Agreement, including, without limitation, (i) at the commencement of each intended Purchase Date and any Time of Sale or Settlement Date, making available appropriate corporate officers of the Company and, upon reasonable request, representatives of Ernst Deloitte & Young LLP and, as applicable, Deloitte and Touche LLP for an update on diligence matters with representatives of the Subject Agent JPMS and (ii) at each Bring-Down Delivery Date or otherwise as the Subject Agent JPMS may reasonably request, providing information and making available documents and appropriate corporate officers of the Company and representatives of Ernst Deloitte & Young LLP and, as applicable, Deloitte and Touche LLP for one or more due diligence sessions with representatives of the Subject Agent JPMS and its counsel.
(gh) The Company shall disclose, in its Quarterly Reports quarterly reports on Form 10-Q and Q, in its Annual Report annual report on Form 10-K, or at its option, in prospectus supplements to be filed by the Company from time to time, the number of the Shares sold through the Agents under this Agreement and any Terms Agreement, the Amended and Restated Alternative Distribution Agreements and any Terms Agreements and Alternative Terms Agreements, and the gross and net proceeds to the Company from the sale of the Shares and the compensation paid by the Company with respect to sales of the Shares pursuant to this Agreement during the relevant quarter oror such shorter period determined by the Company, in as the case of an Annual Report on Form 10-K, during the fiscal year covered by such Annual Report and the fourth quarter of such fiscal yearmay be. All opinions, letters and other documents referred to in Sections 6(b) through (de) above shall be reasonably satisfactory in form and substance to the Subject AgentJPMS. The Subject Agent JPMS will provide the Company with such notice (which may be oral, and in such case, will be confirmed via e-mail or facsimile as soon as reasonably practicable thereafter) as is reasonably practicable under the circumstances when requesting an opinion, letter or other document referred to in Sections 6(b) through (de) above.
Appears in 1 contract
Additional Covenants of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, further covenant and agree with the Subject Agent JPMS as follows:
(a) Each acceptance of a Transaction Proposal made Notice by the Company that is accepted by the Subject Agent by means of a Transaction Acceptance and each execution and delivery by the Company of a Terms Agreement shall be deemed to be (i) an affirmation that the representations, warranties and agreements of the Company and the Operating Partnership herein contained and contained in any certificate delivered to the Subject Agent JPMS pursuant hereto are true and correct at such Time of Acceptance or the date of such Terms Agreement, as the case may be, and (ii) an undertaking that such representations, warranties and agreements will be true and correct on any applicable Time of Sale and Settlement Date, as though made at and as of each such time (it being understood that such representations, warranties and agreements shall relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of such Transaction Acceptance Notice or Terms Agreement, as the case may be).
(b) Each time that (i) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall be amended or supplemented (including, except as noted in the proviso at the end of this Section 6(b), by the filing of any Incorporated Document, but excluding any prospectus supplement filed pursuant to Section 4(b) hereof), (ii) there is a Principal Settlement Date pursuant to a Terms Agreement, or (iii) otherwise as the Subject Agent JPMS shall reasonably request, provided that JPMS shall not make such a request (provided during periods that the Company may decline is not proposing Agency Transactions to comply with any request pursuant to this clause (iii) unless such request is delivered at any time (I) during which a Transaction Acceptance is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein), (II) during which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or (III) during any period beginning on and including the first day of a Terms Agreement through and including the related Settlement Date) JPMS (each date referred to clauses (i), (ii) and (iii) above, a “Bring-Down Delivery Date”), the Company shall, unless the Subject Agent JPMS agrees otherwise, furnish or cause to be furnished to the Subject Agent JPMS a certificate, dated as of such Bring-Down Delivery Date and delivered within three Exchange Business Days as of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the certificate referred to in Section 5(a)(i(a)(i) hereof, modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificates certificate, or, in lieu of such certificate, a certificate to the effect that the statements contained in the certificate referred to in Section 5(a)(i) hereof furnished to Subject Agent JPMS are true and correct as of such Bring-Down Delivery Date as though made at and as of such date (except that such statements shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificate); provided, however, that the filing of a Current Report on Form 8-K will not constitute a Bring-Down Delivery Date unless (A) (x) such Current Report on Form 8-K is filed at any time during which either a Transaction Acceptance Notice is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein) or a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or such Current Report on Form 8-K is filed at any time from and including the date of a Terms Agreement through and including the related Settlement Date and (y) the Subject Agent JPMS has reasonably requested that such date be deemed to be a Bring-Down Delivery Date based upon the reasonable judgment of JPMS that the event or events reported in such Current Report on Form 8-KK has a material adverse effect on the condition, financial or otherwise, or the earnings, assets or business affairs or prospects of the Operating Partnership, Company and their Subsidiaries, taken as a whole, or on the 780 in service properties owned, directly or indirectly, by the Company taken as a whole, or otherwise restates historical financial statements or contains financial statements required by Rules 3-05 or 3-14 of Regulation S-X or (B) such Current Report on Form 8-K contains capsule financial information, historical or pro forma financial statements, supporting schedules or other financial data, including any Current Report on Form 8-K or part thereof under Item 2.02 of Regulation S-K of the Commission that is considered “filed” under the Exchange Act but, for the avoidance of doubt, excluding any Current Report on Form 8-K or any part thereof under Item 2.02 or 7.01 of such Regulation S-K that is “furnished” under the Exchange Act; and provided, further, that an amendment or supplement to the Registration Statement or the Prospectus providing solely for the determination of the terms of the Shares (other than Shares to be offered or sold required pursuant to this Agreement or any Terms Agreement) or relating to the offering of other securities pursuant to the Registration Statement will not constitute a Bring-Down Delivery DateSection 2(i).
(c) Each Bring-Down Delivery Date, the Company shall, unless the Subject Agent JPMS agrees otherwise, cause to be furnished to Subject Agent JPMS (A) the written opinion and, if not included in such opinion, opinions and negative assurance letter of Baker, Donelson, Bearman, Barack ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ LLP, PCcounsel to the Company and of McGuireWoods LLP, special Maryland counsel to the Company, each dated and delivered as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, dated and delivered on such Principal Settlement Date, of the same tenor as the opinion opinions and letter referred to in Section Sections 5(a)(ii) and 5(a)(iii) hereof, respectively, but modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such opinions and letter, or, in lieu of such opinion opinions and letter, such counsel and Maryland counsel shall furnish the Subject Agent JPMS with a letter letters substantially to the effect that the Subject Agent JPMS may rely on the opinion opinions and letter referred to in Section Sections 5(a)(ii) and 5(a)(iii), furnished to the Subject AgentJPMS, to the same extent as though they were dated the date of such letter letters authorizing reliance (except that statements in such last opinion and letter opinions shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such letters authorizing reliance).
(d) Each Bring-Down Delivery Date, the Company shall, unless the Subject Agent JPMS agrees otherwise, cause each of Ernst & Young PricewatershouseCoopers LLP to furnish to the Subject Agent JPMS a “comfort” letter, dated and delivered as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the respective letters letter referred to in Section 5(a)(iii5(a)(iv) hereof, but modified to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the date of such letter, and, if the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall include or incorporate by reference the financial statements of any entity or business (other than the Company and its subsidiaries), or any properties or assets, the Company shall, if requested by the Subject Agent, cause a firm of independent public accountants to furnish to the Subject Agent a “comfort” letter, dated as of the applicable Bring-Down Delivery Date and delivered as promptly as practicable after the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, addressing such matters as the Subject Agent may reasonably request.
(e) (i) No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Act shall be pending before or threatened by the CommissionCommission at the time the Company accepts a Transaction Notice; the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of a an Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); and all requests by the Commission for additional information shall have been complied with to the satisfaction of the Subject Agent JPMS and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes, shall will have occurred and be in effect at the time the Company delivers accepts a Transaction Proposal to the Subject Agent or the time the Subject Agent delivers a Transaction Acceptance to the CompanyNotice; and (ii) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time the Company delivers accepts a Transaction Proposal to the Subject Agent or the time the Subject Agent delivers a Transaction Acceptance to the CompanyNotice.
(f) The Company shall reasonably cooperate with any reasonable due diligence review requested by the Subject Agent JPMS or its counsel from time to time in connection with the transactions contemplated hereby or any Terms Agreement, including, without limitation, (i) at the commencement of each intended Purchase Date and any Time of Sale or Settlement Date, making available appropriate corporate officers of the Company and, upon reasonable request, representatives of Ernst & Young LLP and, as applicable, Deloitte and Touche PricewatershouseCoopers LLP for an update on diligence matters with representatives of the Subject Agent JPMS and (ii) at each Bring-Down Delivery Date or otherwise as the Subject Agent JPMS may reasonably request, providing information and making available documents and appropriate corporate officers of the Company and representatives of Ernst & Young LLP and, as applicable, Deloitte and Touche PricewatershouseCoopers LLP for one or more due diligence sessions with representatives of the Subject Agent JPMS and its counsel.
(g) The Company shall disclose, in its Quarterly Reports quarterly reports on Form 10-Q and Q, in its Annual Report annual report on Form 10-KK and, if requested by JPMS, in prospectus supplements to be filed by the Company from time to time, including in accordance with Section 4(b), the number of the Shares sold through the Agents under this Agreement and any Terms Agreement, the Amended and Restated Alternative Distribution Agreements and any Terms Agreements and Alternative Terms Agreements, and the gross and net proceeds to the Company from the sale of the Shares and the compensation paid by the Company with respect to sales of the Shares pursuant to this Agreement during the relevant quarter oror such shorter period determined by the Company, in as the case of an Annual Report on Form 10-K, during the fiscal year covered by such Annual Report and the fourth quarter of such fiscal yearmay be. All opinions, letters and other documents referred to in Sections 6(b) through (d) above shall be reasonably satisfactory in form and substance to the Subject AgentJPMS. The Subject Agent JPMS will provide the Company with such notice (which may be oral, and in such case, will be confirmed via e-mail or facsimile as soon as reasonably practicable thereafter) as is reasonably practicable under the circumstances when requesting an opinion, letter or other document referred to in Sections 6(b) through (d) above.
Appears in 1 contract
Sources: Distribution Agreement (First Industrial Realty Trust Inc)
Additional Covenants of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, further covenant and agree with the Subject Agent ▇▇▇▇▇ Fargo as follows:
(a) Each acceptance of a Transaction Proposal made Notice by the Company that is accepted by the Subject Agent by means of a Transaction Acceptance and each execution and delivery by the Company of a Terms Agreement shall be deemed to be (i) an affirmation that the representations, warranties and agreements of the Company and the Operating Partnership herein contained and contained in any certificate delivered to the Subject Agent ▇▇▇▇▇ Fargo pursuant hereto are true and correct at such Time of Acceptance or the date of such Terms Agreement, as the case may be, and (ii) an undertaking that such representations, warranties and agreements will be true and correct on any applicable Time of Sale and Settlement Date, as though made at and as of each such time (it being understood that such representations, warranties and agreements shall relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of such Transaction Acceptance Notice or Terms Agreement, as the case may be).
(b) Each time that (i) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall be amended or supplemented (including, except as noted in the proviso at the end of this Section 6(b), by the filing of any Incorporated Document, but excluding any prospectus supplement filed pursuant to Section 4(b) hereof), (ii) there is a Principal Settlement Date pursuant to a Terms Agreement, or (iii) otherwise as the Subject Agent ▇▇▇▇▇ Fargo shall reasonably request, provided that ▇▇▇▇▇ Fargo shall not make such a request (provided during periods that the Company may decline is not proposing Agency Transactions to comply with any request pursuant to this clause (iii) unless such request is delivered at any time (I) during which a Transaction Acceptance is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein), (II) during which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or (III) during any period beginning on and including the first day of a Terms Agreement through and including the related Settlement Date) ▇▇▇▇▇ Fargo (each date referred to clauses (i), (ii) and (iii) above, a “Bring-Down Delivery Date”), the Company shall, unless the Subject Agent ▇▇▇▇▇ Fargo agrees otherwise, furnish or cause to be furnished to the Subject Agent ▇▇▇▇▇ Fargo a certificate, dated as of such Bring-Down Delivery Date and delivered within three Exchange Business Days as of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the certificate referred to in Section 5(a)(i(a)(i) hereof, modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificates certificate, or, in lieu of such certificate, a certificate to the effect that the statements contained in the certificate referred to in Section 5(a)(i) hereof furnished to Subject Agent ▇▇▇▇▇ Fargo are true and correct as of such Bring-Down Delivery Date as though made at and as of such date (except that such statements shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificate); provided, however, that the filing of a Current Report on Form 8-K will not constitute a Bring-Down Delivery Date unless (A) (x) such Current Report on Form 8-K is filed at any time during which either a Transaction Acceptance Notice is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein) or a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or such Current Report on Form 8-K is filed at any time from and including the date of a Terms Agreement through and including the related Settlement Date and (y) the Subject Agent ▇▇▇▇▇ Fargo has reasonably requested that such date be deemed to be a Bring-Down Delivery Date based upon the reasonable judgment of ▇▇▇▇▇ Fargo that the event or events reported in such Current Report on Form 8-KK has a material adverse effect on the condition, financial or otherwise, or the earnings, assets or business affairs or prospects of the Operating Partnership, Company and their Subsidiaries, taken as a whole, or on the 780 in service properties owned, directly or indirectly, by the Company taken as a whole, or otherwise restates historical financial statements or contains financial statements required by Rules 3-05 or 3-14 of Regulation S-X or (B) such Current Report on Form 8-K contains capsule financial information, historical or pro forma financial statements, supporting schedules or other financial data, including any Current Report on Form 8-K or part thereof under Item 2.02 of Regulation S-K of the Commission that is considered “filed” under the Exchange Act but, for the avoidance of doubt, excluding any Current Report on Form 8-K or any part thereof under Item 2.02 or 7.01 of such Regulation S-K that is “furnished” under the Exchange Act; and provided, further, that an amendment or supplement to the Registration Statement or the Prospectus providing solely for the determination of the terms of the Shares (other than Shares to be offered or sold required pursuant to this Agreement or any Terms Agreement) or relating to the offering of other securities pursuant to the Registration Statement will not constitute a Bring-Down Delivery DateSection 2(i).
(c) Each Bring-Down Delivery Date, the Company shall, unless the Subject Agent ▇▇▇▇▇ Fargo agrees otherwise, cause to be furnished to Subject Agent ▇▇▇▇▇ Fargo (A) the written opinion and, if not included in such opinion, opinions and negative assurance letter of Baker, Donelson, Bearman, Barack ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ LLP, PCcounsel to the Company and of McGuireWoods LLP, special Maryland counsel to the Company, each dated and delivered as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, dated and delivered on such Principal Settlement Date, of the same tenor as the opinion opinions and letter referred to in Section Sections 5(a)(ii) and 5(a)(iii) hereof, respectively, but modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such opinions and letter, or, in lieu of such opinion opinions and letter, such counsel and Maryland counsel shall furnish the Subject Agent ▇▇▇▇▇ Fargo with a letter letters substantially to the effect that the Subject Agent ▇▇▇▇▇ Fargo may rely on the opinion opinions and letter referred to in Section Sections 5(a)(ii) and 5(a)(iii), furnished to the Subject Agent▇▇▇▇▇ Fargo, to the same extent as though they were dated the date of such letter letters authorizing reliance (except that statements in such last opinion and letter opinions shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such letters authorizing reliance).
(d) Each Bring-Down Delivery Date, the Company shall, unless the Subject Agent ▇▇▇▇▇ Fargo agrees otherwise, cause each of Ernst & Young PricewatershouseCoopers LLP to furnish to the Subject Agent ▇▇▇▇▇ Fargo a “comfort” letter, dated and delivered as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the respective letters letter referred to in Section 5(a)(iii5(a)(iv) hereof, but modified to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the date of such letter, and, if the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall include or incorporate by reference the financial statements of any entity or business (other than the Company and its subsidiaries), or any properties or assets, the Company shall, if requested by the Subject Agent, cause a firm of independent public accountants to furnish to the Subject Agent a “comfort” letter, dated as of the applicable Bring-Down Delivery Date and delivered as promptly as practicable after the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, addressing such matters as the Subject Agent may reasonably request.
(e) (i) No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Act shall be pending before or threatened by the CommissionCommission at the time the Company accepts a Transaction Notice; the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of a an Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); and all requests by the Commission for additional information shall have been complied with to the satisfaction of the Subject Agent ▇▇▇▇▇ Fargo and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes, shall will have occurred and be in effect at the time the Company delivers accepts a Transaction Proposal to the Subject Agent or the time the Subject Agent delivers a Transaction Acceptance to the CompanyNotice; and (ii) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time the Company delivers accepts a Transaction Proposal to the Subject Agent or the time the Subject Agent delivers a Transaction Acceptance to the CompanyNotice.
(f) The Company shall reasonably cooperate with any reasonable due diligence review requested by the Subject Agent ▇▇▇▇▇ Fargo or its counsel from time to time in connection with the transactions contemplated hereby or any Terms Agreement, including, without limitation, (i) at the commencement of each intended Purchase Date and any Time of Sale or Settlement Date, making available appropriate corporate officers of the Company and, upon reasonable request, representatives of Ernst & Young LLP and, as applicable, Deloitte and Touche PricewatershouseCoopers LLP for an update on diligence matters with representatives of the Subject Agent ▇▇▇▇▇ Fargo and (ii) at each Bring-Down Delivery Date or otherwise as the Subject Agent ▇▇▇▇▇ Fargo may reasonably request, providing information and making available documents and appropriate corporate officers of the Company and representatives of Ernst & Young LLP and, as applicable, Deloitte and Touche PricewatershouseCoopers LLP for one or more due diligence sessions with representatives of the Subject Agent ▇▇▇▇▇ Fargo and its counsel.
(g) The Company shall disclose, in its Quarterly Reports quarterly reports on Form 10-Q and Q, in its Annual Report annual report on Form 10-KK and, if requested by ▇▇▇▇▇ Fargo, in prospectus supplements to be filed by the Company from time to time, including in accordance with Section 4(b), the number of the Shares sold through the Agents under this Agreement and any Terms Agreement, the Amended and Restated Alternative Distribution Agreements and any Terms Agreements and Alternative Terms Agreements, and the gross and net proceeds to the Company from the sale of the Shares and the compensation paid by the Company with respect to sales of the Shares pursuant to this Agreement during the relevant quarter oror such shorter period determined by the Company, in as the case of an Annual Report on Form 10-K, during the fiscal year covered by such Annual Report and the fourth quarter of such fiscal yearmay be. All opinions, letters and other documents referred to in Sections 6(b) through (d) above shall be reasonably satisfactory in form and substance to the Subject Agent▇▇▇▇▇ Fargo. The Subject Agent ▇▇▇▇▇ Fargo will provide the Company with such notice (which may be oral, and in such case, will be confirmed via e-mail or facsimile as soon as reasonably practicable thereafter) as is reasonably practicable under the circumstances when requesting an opinion, letter or other document referred to in Sections 6(b) through (d) above.
Appears in 1 contract
Sources: Distribution Agreement (First Industrial Realty Trust Inc)
Additional Covenants of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, Partnership further covenant and agree with the Subject Agent [●] as follows:
(a) Each Transaction Proposal made by the Company that is accepted by the Subject Agent [●] by means of a Transaction Acceptance and each execution and delivery by the Company of a Terms Agreement shall be deemed to be (i) an affirmation that the representations, warranties and agreements of the Company and the Operating Partnership herein contained and contained in any certificate delivered to the Subject Agent [●] pursuant hereto are true and correct at such Time of Acceptance or the date of such Terms Agreement, as the case may be, and (ii) an undertaking that such representations, warranties and agreements will be true and correct on any applicable Time of Sale and Settlement Date, as though made at and as of each such time (it being understood that such representations, warranties and agreements shall relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of such Transaction Acceptance or Terms Agreement, as the case may be).
(b) Each time that (i) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall be amended or supplemented (including, except as noted in the proviso at the end of this Section 6(b), by the filing of any Incorporated Document), (ii) there is a Principal Settlement Date pursuant to a Terms Agreement, or (iii) otherwise as the Subject Agent [●] shall reasonably request (provided that the Company may decline to comply with any request pursuant to this clause (iii) unless such request is delivered at any time (I) during which a Transaction Acceptance is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein), (II) during which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or (III) during any period beginning on and including the first day of a Terms Agreement through and including the related Settlement Date) (each date referred to clauses (i), (ii) and (iii) above, a “Bring-Down Delivery Date”), the Company shall, unless the Subject Agent [●] agrees otherwise, furnish or cause to be furnished to the Subject Agent a certificate[●] certificates, dated as of such Bring-Down Delivery Date and delivered within three one Exchange Business Days of Day after the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the certificate certificates referred to in Section 5(a)(i), Section 5(a)(iv) and 5(a)(v) hereof, modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificates and, in the case of the Chief Financial Officer’s certificate, covering such other financial, numerical and statistical data that is not covered by the accountants’ “comfort” letter dated as of such Bring -Down Delivery Date as [●] may reasonably request, or, in lieu of such certificatecertificates, a certificate certificates to the effect that the statements contained in the certificate certificates referred to in Section Sections 5(a)(i), 5(a)(v) and, unless [●] shall have requested that the Chief Financial Officer’s certificate cover different or additional date as aforesaid, 5(a)(iv) hereof furnished to Subject Agent are true and correct as of such Bring-Down Delivery Date as though made at and as of such date (except that such statements shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificate); provided, however, that the filing of a Current Report on Form 8-K will not constitute a Bring-Down Delivery Date under clause (i) above unless either (A) (x) such Current Report on Form 8-K is filed at any time during which either a Transaction Acceptance is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein) or a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or such Current Report on Form 8-K is filed at any time from and including the date of a Terms Agreement through and including the related Settlement Date and (y) the Subject Agent [●] has reasonably requested that such date be deemed to be a Bring-Down Delivery Date based upon the event or events reported in such Current Report on Form 8-K, K or (B) such Current Report on Form 8-K contains capsule financial information, historical or pro forma financial statements, supporting schedules or other financial data, including any Current Report on Form 8-K or part thereof under Item 2.02 of Regulation S-K of the Commission that is considered “filed” under the Exchange Act but, for the avoidance of doubt, excluding any Current Report on Form 8-K or any part thereof under Item 2.02 or 7.01 of such Regulation S-K that is “furnished” under the Exchange Act; and provided, further, that an amendment or supplement to the Registration Statement or the Prospectus providing solely for the determination of the terms of the Shares (other than Shares to be offered or sold pursuant to this Agreement or any Terms Agreement) or relating to the offering of other securities pursuant to the Registration Statement will not constitute a Bring-Down Delivery Date; and provided, further, that the requirement to provide the certificates under this Section 6(b) shall be waived for any Bring-Down Delivery Date occurring at a time at which no Transaction Proposal is pending, which waiver shall continue until the earlier to occur of the date the Company delivers a Transaction Proposal hereunder (which for such calendar quarter shall be considered a Bring-Down Delivery Date) and the next occurring Bring-Down Delivery Date. Notwithstanding the foregoing, if the Company subsequently decides to sell Shares following a Bring-Down Delivery Date when the Company relied on such waiver and did not provide [●] with the certificates under this Section 6(b), then before the Company delivers the Transaction Proposal or [●] sells any Shares, the Company shall provide the Agents with the certificates under this Section 6(b), dated the date of the Transaction Proposal. The obligation of the Company under this Section 6(b) shall be deferred for any period during which the sale of Shares has been suspended or terminated pursuant to the terms of this Agreement and shall recommence upon the termination of such period.
(c) Each Bring-Down Delivery DateOn each date on which the Company is required to deliver the certificates under Section 6(b), the Company shall, unless the Subject Agent [●] agrees otherwise, cause to be furnished to Subject Agent [●] (Ai)(A) the written opinion and, if not included in such legal opinion, tax opinion and negative assurance letter of Baker, Donelson, Bearman, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, PC▇ LLP, counsel to the CompanyCompany and (B) the written legal opinion of ▇▇▇▇▇▇▇ LLP, Maryland counsel to the Company and (ii) the written legal opinion and negative assurance letter of ▇▇▇▇▇▇▇ Procter LLP, counsel to the Agents, each dated as of the applicable Bring-Down Delivery Date and delivered within three one Exchange Business Days of Day after the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, dated and delivered on such Principal Settlement Date, of the same tenor as the opinion opinions and letter letters referred to in Section 5(a)(ii) or Section 5(b) hereof, as applicable, but modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such opinions and letterletters, or, in lieu of such opinion opinions and letterletters, each such counsel shall furnish the Subject Agent [●] with a letter substantially to the effect that the Subject Agent [●] may rely on the opinion and letter of such counsel referred to in Section 5(a)(ii) or Section 5(b), as applicable, furnished to the Subject Agent[●], to the same extent as though they were dated the date of such letter authorizing reliance (except that statements in such last opinion and letter of such counsel shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such letters authorizing reliance).
(d) Each Bring-Down Delivery DateOn each date on which the Company is required to deliver the certificates under Section 6(b), the Company shall, unless the Subject Agent [●] agrees otherwise, cause each of (i) Deloitte & Touche LLP and (ii) Ernst & Young LLP to furnish to the Subject Agent [●] a “comfort” letter, dated as of the applicable Bring-Down Delivery Date and delivered within three one Exchange Business Days of Day after the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the respective letters referred to in Section 5(a)(iii) hereof, but modified to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the date of such letter, and, if the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall include or incorporate by reference the financial statements of any entity or business (other than the consolidated financial statements of the Company and its subsidiaries), or any properties or assets, the Company shall, if requested by the Subject Agent[●], cause a firm of independent public accountants to furnish to the Subject Agent [●] a “comfort” letter, dated as of the applicable Bring-Down Delivery Date and delivered as promptly as practicable within one Exchange Business Day after the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, addressing such matters as the Subject Agent [●] may reasonably request.
(e) (i) No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Act shall be pending before or threatened by the Commission; the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); and all requests by the Commission for additional information shall have been complied with to the satisfaction of the Subject Agent [●] and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes, shall have occurred and be in effect at the time the Company delivers a Transaction Proposal to the Subject Agent [●] or the time the Subject Agent [●] delivers a Transaction Acceptance to the Company; and (ii) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time the Company delivers a Transaction Proposal to the Subject Agent [●] or the time the Subject Agent [●] delivers a Transaction Acceptance to the Company.
(f) The Company shall reasonably cooperate with any reasonable due diligence review requested by the Subject Agent [●] or its counsel from time to time in connection with the transactions contemplated hereby or any Terms Agreement, including, without limitation, (i) at the commencement of each intended Purchase Date and any Time of Sale or Settlement Date, providing information and making available appropriate documents and appropriate corporate officers of the Company and, upon reasonable request, representatives of each of Deloitte & Touche LLP and Ernst & Young LLP (and, as applicableif the Registration Statement, Deloitte the Prospectus or any Permitted Free-Writing Prospectus shall include or incorporate by reference the financial statements of any entity or business (other than the consolidated financial statements of the Company and Touche LLP its subsidiaries), representatives of the independent public accountants that audited or reviewed such financial statements) for an update on diligence matters with representatives of the Subject Agent [●] and (ii) at each Bring-Down Delivery Date or and otherwise as the Subject Agent [●] may reasonably request, providing information and making available documents and appropriate corporate officers of the Company and representatives of each of Deloitte & Touche LLP and Ernst & Young LLP (and, as applicableif the Registration Statement, Deloitte the Prospectus or any Permitted Free-Writing Prospectus shall include or incorporate by reference the financial statements of any entity or business (other than the consolidated financial statements of the Company and Touche LLP its subsidiaries), representatives of the independent public accountants that audited or reviewed such financial statements) for one or more due diligence sessions with representatives of the Subject Agent [●] and its counsel.
(g) The Company shall disclose, in its Quarterly Reports quarterly reports on Form 10-Q and in its Annual Report annual report on Form 10-KK and, if requested by [●], in supplements to the Prospectus to be filed by the Company with the Commission from time to time, the number of the Shares sold through the Agents [●] under this Agreement, the Amended and Restated Alternative Distribution Agreements Agreement and any Terms Agreements and Alternative Terms AgreementsAgreement, and the gross and net proceeds to the Company from the sale of the Shares and the compensation paid by the Company with respect to sales of the Shares pursuant to this Agreement during the relevant quarter or, in the case of any such prospectus supplement, such shorter period as [●] may reasonably request or, in the case of an Annual Report on Form 10-K, during the fiscal year covered by such Annual Report and the fourth quarter of such fiscal year. All opinions, letters and other documents referred to in Sections 6(b) through (d) above shall be reasonably satisfactory in form and substance to the Subject Agent[●]. The Subject Agent [●] will provide the Company with such notice (which may be oral, and in such case, will be confirmed via e-mail as soon as reasonably practicable thereafter) as is reasonably practicable under the circumstances when requesting an opinion, letter or other document referred to in Sections 6(b) through (d) above.
Appears in 1 contract
Additional Covenants of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, further covenant and agree with the Subject Agent CF&Co as follows:
(a) Each delivery of a Transaction Proposal made Notice by the Company that is accepted by the Subject Agent by means of a Transaction Acceptance and each execution and delivery by the Company of a Terms Agreement shall be deemed to be (i) an affirmation that the representations, warranties and agreements of the Company and the Operating Partnership herein contained and contained in any certificate delivered to the Subject Agent CF&Co pursuant hereto are true and correct at such Time of Acceptance Delivery or the date of such Terms Agreement, as the case may be, and (ii) an undertaking that such representations, warranties and agreements will be true and correct on any applicable Time of Sale and Settlement Date, as though made at and as of each such time (it being understood that such representations, warranties and agreements shall relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of such Transaction Acceptance Notice or Terms Agreement, as the case may be).
(b) Each time that (i) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall be amended or supplemented (including, except as noted in the proviso at the end of this Section 6(b), by the filing of any Incorporated Document), or (ii) there is a Principal Settlement Date pursuant to a Terms Agreement, or (iii) otherwise as the Subject Agent CF&Co shall reasonably request (on the advice of outside counsel and in accordance with past practice, provided that the Company may decline to comply with any CF&Co shall not make such a request during periods that there is no proposed Agency Transaction pursuant to this clause (iii) unless such request is delivered at any time (I) during which delivery of a Transaction Acceptance is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein), (II) during which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or (III) during any period beginning on and including the first day of a Terms Agreement through and including the related Settlement Date) Notice (each date referred to clauses (i), (ii) and (iii) above, a “Bring-Down Delivery Date”), the Company and the Operating Partnership shall, unless the Subject Agent CF&Co agrees otherwise, furnish or cause to be furnished to the Subject Agent CF&Co a certificate, dated as of such Bring-Down Delivery Date and delivered within three Exchange Business Days as of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the certificate referred to in Section 5(a)(i) hereof, modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificates certificate, or, in lieu of such certificate, a certificate to the effect that the statements contained in the certificate referred to in Section 5(a)(i) hereof furnished to Subject Agent CF&Co are true and correct as of such Bring-Down Delivery Date as though made at and as of such date (except that such statements shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificate); provided, however, that the filing of a Current Report on Form 8-K will not constitute a Bring-Down Delivery Date unless (A) (x) such Current Report on Form 8-K is filed at any time during which either a Transaction Acceptance is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein) or a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or such Current Report on Form 8-K is filed at any time from and including the date of a Terms Agreement through and including the related Settlement Date and (y) the Subject Agent CF&Co has reasonably requested that such date be deemed to be a Bring-Down Delivery Date based upon the event or events reported in such Current Report on Form 8-K, K (within five Exchange Business Days of the filing thereof with the Commission) or (B) such Current Report on Form 8-K contains capsule financial information, historical or pro forma financial statements, supporting schedules or other financial data, including any Current Report on Form 8-K or part thereof under Item 2.02 of Regulation S-K of the Commission that is considered “filed” under the Exchange Act but, for the avoidance of doubt, excluding any Current Report on Form 8-K or any part thereof under Item 2.02 or 7.01 of such Regulation S-K that is “furnished” under the Exchange Act; and provided, further, that an amendment or supplement to the Registration Statement or the Prospectus providing solely for the determination of the terms of the Shares (other than Shares to be offered or sold required pursuant to this Agreement or any Terms Agreement) or relating to the offering of other securities pursuant to the Registration Statement will not constitute a Bring-Down Delivery DateSection 2(i).
(c) Each Bring-Down Delivery Date, the Company shall, unless the Subject Agent CF&Co agrees otherwise, cause to be furnished to Subject Agent CF&Co (A) the written opinion and, if not included in such opinion, and negative assurance letter statement of Baker, Donelson, Bearman, ▇▇▇▇▇▇▇▇ King & ▇▇▇▇▇▇▇▇▇, PCSpalding LLP, counsel to the Company, each dated and delivered as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, dated and delivered on such Principal Settlement Date, of the same tenor as the opinion and letter statement referred to in Section 5(a)(ii) hereof, respectively, but modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such opinions opinion and letterstatement, or, in lieu of such opinion and letterstatement, such counsel shall furnish the Subject Agent CF&Co with a letter substantially to the effect that the Subject Agent CF&Co may rely on the opinion and letter statement referred to in Section 5(a)(ii), furnished to the Subject AgentCF&Co, to the same extent as though they were dated the date of such letter authorizing reliance (except that statements in such last opinion and letter shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such letters letter authorizing reliance).
(d) Each Bring-Down Delivery Date, the Company shall, unless the Subject Agent CF&Co agrees otherwise, cause each of Ernst Deloitte & Young Touche LLP to furnish to the Subject Agent CF&Co a “comfort” letter, dated and delivered as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the respective letters letter referred to in Section 5(a)(iii) hereof, but modified to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the date of such letter.
(e) Each Bring-Down Delivery Date, and, if to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall include or incorporate by reference the financial statements of any entity or business (other than the Company and its subsidiaries), or any properties or assetsextent required pursuant to Section 2(i) above, the Company shall, if requested by the Subject Agentunless CF&Co agrees otherwise, cause to be furnished to CF&Co a firm of independent public accountants to furnish to the Subject Agent a “comfort” letter, dated as certificate of the applicable Bring-Down Delivery Date and delivered as promptly as practicable after chief financial officer of the applicable Bring-Down Delivery Date or, in Company of the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, addressing such matters same tenor as the Subject Agent may reasonably requestcertificate referred to in Section 2(i).
(e) (i) No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Act shall be pending before or to the knowledge of the Company threatened by the Commission; the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); and all requests by the Commission for additional information shall have been complied with to the satisfaction of the Subject Agent CF&Co and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes, shall will have occurred and be in effect at the time the Company delivers a Transaction Proposal to the Subject Agent or the time the Subject Agent delivers a Transaction Acceptance to the CompanyNotice; and (ii) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time the Company delivers a Transaction Proposal to the Subject Agent or the time the Subject Agent delivers a Transaction Acceptance to the CompanyNotice.
(fg) The Company shall reasonably cooperate with any reasonable due diligence review requested by the Subject Agent CF&Co or its counsel from time to time in connection with the transactions contemplated hereby or any Terms Agreement, including, without limitation, (i) at the commencement of each intended Purchase Date and any Time of Sale or Settlement Date, making available appropriate corporate officers of the Company and, upon reasonable request, representatives of Ernst Deloitte & Young LLP and, as applicable, Deloitte and Touche LLP for an update on diligence matters with representatives of the Subject Agent CF&Co and (ii) at each Bring-Down Delivery Date or otherwise as the Subject Agent CF&Co may reasonably request, providing information and making available documents and appropriate corporate officers of the Company and representatives of Ernst Deloitte & Young LLP and, as applicable, Deloitte and Touche LLP for one or more due diligence sessions with representatives of the Subject Agent CF&Co and its counsel.
(gh) The Company shall disclose, in its Quarterly Reports quarterly reports on Form 10-Q and Q, in its Annual Report annual report on Form 10-K, or at its option, in prospectus supplements to be filed by the Company from time to time, the number of the Shares sold through the Agents under this Agreement and any Terms Agreement, the Amended and Restated Alternative Distribution Agreements and any Terms Agreements and Alternative Terms Agreements, and the gross and net proceeds to the Company from the sale of the Shares and the compensation paid by the Company with respect to sales of the Shares pursuant to this Agreement during the relevant quarter oror such shorter period determined by the Company, in as the case of an Annual Report on Form 10-K, during the fiscal year covered by such Annual Report and the fourth quarter of such fiscal yearmay be. All opinions, letters and other documents referred to in Sections 6(b) through (de) above shall be reasonably satisfactory in form and substance to the Subject AgentCF&Co. The Subject Agent CF&Co will provide the Company with such notice (which may be oral, and in such case, will be confirmed via e-mail or facsimile as soon as reasonably practicable thereafter) as is reasonably practicable under the circumstances when requesting an opinion, letter or other document referred to in Sections 6(b) through (de) above.
Appears in 1 contract
Additional Covenants of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, further covenant and agree with the Subject Agent Agent, the Forward Seller and the Forward Purchaser as follows:
(a) Each Transaction Proposal made by the Company that is accepted by the Subject Agent by means of a Transaction Acceptance, each Placement Notice or Forward Acceptance that is delivered by the Company and each execution and delivery by the Company of a Terms Agreement shall be deemed to be (i) an affirmation that the representations, warranties and agreements of the Company and the Operating Partnership herein contained and contained in any certificate delivered to the Subject Agent Agent, the Forward Seller and the Forward Purchaser pursuant hereto are true and correct at such Time of Acceptance or the date of such Terms Agreement, as the case may be, and (ii) an undertaking that such representations, warranties and agreements will be true and correct on any applicable Time of Sale and Settlement Date, as though made at and as of each such time (it being understood that such representations, warranties and agreements shall relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of such Transaction Acceptance, Placement Notice, Forward Acceptance or Terms Agreement, as the case may be).
(b) Each time that (i) the Registration Statement, Statement or the Prospectus or any Permitted Free Writing Prospectus shall be amended or supplemented (including, except as noted in the proviso at the end of this Section 6(b), by the filing of any Incorporated Document), (ii) the Company files an annual report on Form 10-K or a quarterly report on Form 10-Q under the Exchange Act, (iii) the Company files a report on Form 8-K under the Exchange Act containing amended Company financial information (excluding information “furnished” but not filed), (iv) there is a Principal Settlement Date pursuant to a Terms Agreement, or (iiiv) otherwise as the Subject Agent Agent, the Forward Seller or the Forward Purchaser shall reasonably request (provided that the Company may decline to comply with any request pursuant to this clause (iiiv) unless such request is delivered at any time (Iw) during a Forward Hedge Selling Period, (x) during which a Transaction Acceptance is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein), (IIy) during which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or (IIIz) during any period beginning on and including the first day of a Terms Agreement through and including the related Settlement Date) (each date referred to clauses (i), (ii), (iii), (iv) and (iiiv) above, a “Bring-Down Delivery Date”), the Company shall, except during a Suspension Period as provided in Section 4(t) hereof or unless the Subject Agent or the Forward Seller, as applicable, agrees otherwise, furnish or cause to be furnished to the Subject Agent or the Forward Seller, as applicable, a certificate, dated as of such Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the certificate referred to in Section 5(a)(i) hereof, modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificates or, in lieu of such certificate, a certificate to the effect that the statements contained in the certificate referred to in Section 5(a)(i) hereof furnished to Subject Agent are true and correct as form of such Bring-Down Delivery Date as though made at and as of such date (except that such statements shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such certificate)Exhibit B hereto; provided, however, that the filing of a Current Report on Form 8-K will not constitute a Bring-Down Delivery Date unless (A) (x) such Current Report on Form 8-K is filed at any time during which either a Transaction Acceptance is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein) or a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or such Current Report on Form 8-K is filed at any time from and including the date of a Terms Agreement through and including the related Settlement Date and (y) the Subject Agent has reasonably requested that such date be deemed to be a Bring-Down Delivery Date based upon the event or events reported in such Current Report on Form 8-K, or (B) such Current Report on Form 8-K contains capsule financial information, historical or pro forma financial statements, supporting schedules or other financial data, including any Current Report on Form 8-K or part thereof under Item 2.02 of Regulation S-K of the Commission that is considered “filed” under the Exchange Act but, for the avoidance of doubt, excluding any Current Report on Form 8-K or any part thereof under Item 2.02 or 7.01 of such Regulation S-K that is “furnished” under the Exchange Act; and provided, further, that an amendment or supplement to the Registration Statement or the Prospectus providing solely for the determination of the terms of the Shares (other than Shares to be offered or sold pursuant to this Agreement or any Terms Agreement) or relating to the a different offering of other securities pursuant to the Registration Statement will not constitute a Bring-Down Delivery Date.
(c) Each On each Bring-Down Delivery Date, the Company shall, except during a Suspension Period as provided in Section 4(t) hereof or unless the Subject Agent agrees Agent, the Forward Seller and the Forward Purchaser each agree otherwise, cause to be furnished to Subject Agent Agent, the Forward Seller and the Forward Purchaser (A) the written opinion and, if not included in such opinion, negative assurance letter of Baker, Donelson, Bearman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, PCLovells US LLP, counsel to the Company, each dated as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, dated and delivered on such Principal Settlement Date, of the same tenor as the opinion and letter referred to in Section 5(a)(ii5(a)(i) hereof, but modified as necessary to relate to the Registration Statement, the Prospectus or Prospectus, any Permitted Free Writing Prospectus and the General Disclosure Package as amended and supplemented to the time of delivery of such opinions and letter, or, in lieu of such opinion and letter, such counsel shall furnish the Subject Agent Agent, the Forward Seller and the Forward Purchaser with a letter substantially to the effect that each of the Subject Agent Agent, the Forward Seller and the Forward Purchaser may rely on the opinion and letter referred to in Section 5(a)(ii5(a)(i), furnished to the Subject Agent, the Forward Seller and the Forward Purchaser, to the same extent as though they were dated the date of such letter authorizing reliance (except that statements in such last opinion and letter shall be deemed to relate to the Registration Statement, the Prospectus or Prospectus, any Permitted Free Writing Prospectus and the General Disclosure Package as amended and supplemented to the time of delivery of such letters authorizing reliance).
(d) Each On each Bring-Down Delivery Date, the Company shall, except during a Suspension Period as provided in Section 4(t) hereof or unless the Subject Agent agrees Agent, the Forward Seller and the Forward Purchaser each agree otherwise, cause each of Ernst Deloitte & Young Touche LLP to furnish to the Subject Agent a Agent, the Forward Seller and the Forward Purchaser one or more “comfort” letterletters, dated as of the applicable Bring-Down Delivery Date and delivered within three Exchange Business Days of the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the respective letters referred to in Section 5(a)(iii5(a)(ii) hereof, but modified to relate to the Registration Statement, the Prospectus or Prospectus, any Permitted Free Writing Prospectus and the General Disclosure Package as amended and supplemented to the date of such letter, and, if the Registration Statement, the Prospectus or Prospectus, any Permitted Free Writing Prospectus and the General Disclosure Package shall include or incorporate by reference the financial statements of any entity or business (other than the Company and its subsidiaries), or any properties or assets, the Company shall, if requested by the Subject Agent, the Forward Seller or the Forward Purchaser, cause a firm of independent public accountants to furnish to the Subject Agent a “comfort” letter, dated as of the applicable Bring-Down Delivery Date and delivered as promptly as practicable after the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, addressing such matters as the Subject Agent Agent, the Forward Seller or the Forward Purchaser may reasonably request.
(e) (i) No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Act shall be pending before or threatened by the Commission; the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); and all requests by the Commission for additional information shall have been complied with to the satisfaction of the Subject Agent Agent, the Forward Seller and the Forward Purchaser and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes, shall have occurred and be in effect at the time the Company delivers a Transaction Proposal to the Subject Agent or a Placement Notice or Forward Acceptance to the Forward Seller and the Forward Purchaser or the time the Subject Agent delivers a Transaction Acceptance to the CompanyCompany or the Forward Seller and the Forward Purchaser accept a Placement Notice; and (ii) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, therein not misleading at the time the Company delivers a Transaction Proposal to the Subject Agent or a Placement Notice or Forward Acceptance to the Forward Seller and the Forward Purchaser or the time the Subject Agent delivers a Transaction Acceptance to the CompanyCompany or the Forward Seller and the Forward Purchaser accept a Placement Notice.
(f) The Company shall reasonably cooperate with any reasonable due diligence review requested by the Subject Agent Agent, the Forward Seller or its counsel the Forward Purchaser, or their respective counsel, from time to time in connection with the transactions contemplated hereby or any Terms Agreement, including, without limitation, (i) at the commencement of each intended Purchase Date and any Time of Sale or Settlement Date, making available appropriate corporate officers of the Company and, upon reasonable request, representatives of Ernst Deloitte & Young LLP and, as applicable, Deloitte and Touche LLP for an update on diligence matters with representatives of the Subject Agent Agent, the Forward Seller and the Forward Purchaser and (ii) except during a Suspension Period as provided in Section 4(t) hereof, at each Bring-Down Delivery Date or otherwise as the Subject Agent Agent, the Forward Seller or the Forward Purchaser may reasonably request, providing information and making available documents and appropriate corporate officers of the Company and representatives of Ernst Deloitte & Young LLP and, as applicable, Deloitte and Touche LLP for one or more due diligence sessions with representatives of the Subject Agent Agent, the Forward Seller and its the Forward Purchaser and their respective counsel.
(g) The Company shall disclose, in its Quarterly Reports on Form 10-Q and in its Annual Report on Form 10-K, the number of the Shares sold through the Agents under this Agreement, the Amended and Restated Alternative Distribution Agreements and any Terms Agreements and Alternative Terms Agreements, and the gross and net proceeds to the Company from the sale of the Shares during the relevant quarter or, in the case of an Annual Report on Form 10-K, during the fiscal year covered by such Annual Report and the fourth quarter of such fiscal year. All opinions, letters and other documents referred to in Sections 6(b) through (d) above this Section 6 shall be reasonably satisfactory in form and substance to the Subject Agent, the Forward Seller and the Forward Purchaser. The Subject Agent Agent, the Forward Seller and the Forward Purchaser will provide the Company with such notice (which may be oraloral and, and in such case, will be confirmed via e-mail as soon as reasonably practicable thereafter) as is reasonably practicable under the circumstances when requesting an opinion, letter or other any such document referred to in Sections 6(b) through (d) abovethis Section 6.
Appears in 1 contract
Sources: Equity Distribution Agreement (Brixmor Operating Partnership LP)
Additional Covenants of the Company and the Operating Partnership. The Each of the Company and the Operating Partnership, jointly and severally, further covenant covenants and agree agrees with each of the Subject Agent Agents as follows:
(a) a. Each Transaction Proposal made by the Company that is accepted by the Subject an Agent by means of a Transaction Acceptance and each execution and delivery by the Company and the Operating Partnership of a Terms Agreement shall be deemed to be (i) an affirmation that the representations, warranties and agreements of the Company and the Operating Partnership herein contained and contained in any certificate delivered to the Subject Agent Agents pursuant hereto are true and correct at such Time of Acceptance or the date of such Terms Agreement, as the case may be, and (ii) an undertaking that such representations, warranties and agreements will be true and correct on any applicable Time of Sale and Settlement Date, as though made at and as of each such time (it being understood that such representations, warranties and agreements shall relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to at the time of such Transaction Acceptance or Terms Agreement, as the case may be).
(b) b. Each time that (i) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall be amended or supplemented (including, except as noted in the proviso at the end of this Section 6(b), by the filing of any Incorporated Document), (ii) there is a Principal Settlement Date pursuant to a Terms Agreement, or (iii) otherwise as the Subject Agents shall reasonably request, provided that no Agent shall reasonably make such a request (provided during periods that the Company may decline to comply with any request there is no proposed Agency Transaction pursuant to this clause (iii) unless such request is delivered at any time (I) during which a delivery of a Transaction Acceptance is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein), (II) during which a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or (III) during any period beginning on and including the first day of a Terms Agreement through and including the related Settlement Date) Proposal (each date referred to clauses (i), (ii) and (iii) above, a “Bring-Down Delivery Date”), the Company shall, unless the Subject Agent agrees Agents agree otherwise, furnish or cause to be furnished to the Subject Agent Agents a certificate, dated as of such Bring-Down Delivery Date and delivered within three two Exchange Business Days of after the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the certificate referred to in Section 5(a)(i) hereof, modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to at the time of delivery of such certificates certificate, or, in lieu of such certificate, a certificate to the effect that the statements contained in the certificate referred to in Section 5(a)(i) hereof furnished to Subject Agent are the Agents is true and correct as of such Bring-Down Delivery Date as though made at and as of such date (except that such statements shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to at the time of delivery of such certificate); provided, however, that the filing of a proxy statement in connection with the Company’s annual or special meeting of stockholders or a Current Report on Form 8-K will not constitute a Bring-Down Delivery Date under clause (i) above unless either (A) (x) such Current Report on Form 8-K is filed at any time during which either a Transaction Acceptance is binding and the Company has not suspended the use thereof (and prior to the settlement of the Shares specified therein) or a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) or such Current Report on Form 8-K is filed at any time from and including the date of a Terms Agreement through and including the related Settlement Date and (y) the Subject such Agent has reasonably requested that such date be deemed to be a Bring-Down Delivery Date based upon the event or events reported in such Current Report on Form 8-K, ; or (B) such Current Report on Form 8-K contains capsule financial information, historical or pro forma financial statements, supporting schedules or other financial data, including any Current Report on Form 8-K or part thereof under Item 2.02 of Regulation S-K of the Commission that is considered “filed” under the Exchange Act but, for the avoidance of doubt, excluding any Current Report on Form 8-K or any part thereof under Item 2.02 or 7.01 of such Regulation S-K that is “furnished” under the Exchange Act”; and provided, further, that an amendment or supplement to the Registration Statement or the Prospectus providing solely for the determination of the terms of the Shares (other than Shares to be offered or sold pursuant to this Agreement or any Terms Agreement) or relating to the offering of other securities pursuant to the Registration Statement will not constitute a Bring-Down Delivery Date.
(c) Each c. On each Bring-Down Delivery Date, the Company shall, unless the Subject Agent agrees Agents agree otherwise, cause to be furnished to Subject Agent the Agents (Aa) the written opinion and, if not included in such opinion, negative assurance letter of Baker▇▇▇▇▇ Day, Donelsoncounsel to the Company, Bearman(b) the written opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., tax counsel to the Company, (c) the written opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, Dorsett, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, PCL.L.P., North Carolina counsel to the Company, and (d) the negative assurance letter of King & Spalding LLP, counsel to the CompanyAgents, each dated as of the applicable Bring-Down Delivery Date and delivered within three two Exchange Business Days of after the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, dated and delivered on such Principal Settlement Date, of the same tenor as the opinion opinions and letter letters referred to in Section 5(a)(ii) hereof, but modified as necessary to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to at the time of delivery of such opinions and letterletters, or, in lieu of such opinion opinions and letterletters, such counsel shall furnish the Subject Agent Agents with a letter substantially to the effect that the Subject Agent Agents may rely on the opinion and letter of such counsel referred to in Section 5(a)(ii), furnished to the Subject AgentAgents, to the same extent as though they were dated the date of such letter authorizing reliance (except that statements in such last opinion and letter of such counsel shall be deemed to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to at the time of delivery of such letters authorizing reliance).
(d) Each d. On each Bring-Down Delivery Date, the Company shall, unless the Subject Agent agrees Agents agree otherwise, cause each of Ernst & Young LLP (or the Company’s then-current independent registered public accounting firm) to furnish to the Subject Agent Agents a “comfort” comfort letter, dated as of the applicable Bring-Down Delivery Date and delivered within three two Exchange Business Days of after the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, of the same tenor as the respective letters letter referred to in Section 5(a)(iii5(a)(iv) hereof, but modified to relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to at the date of such letter, and, if the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall include or incorporate by reference the financial statements of any entity or business (other than the consolidated financial statements of the Company and its subsidiaries), or any properties or assets, the Company shall, if requested by the Subject AgentAgents, cause a firm of independent registered public accountants to furnish to the Subject Agent Agents a “comfort” comfort letter, dated as of the applicable Bring-Down Delivery Date and delivered as promptly as practicable after the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, delivered on such Principal Settlement Date, addressing such matters as the Subject Agent Agents may reasonably request.
(e) (i) No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Act shall be pending before or, to the knowledge of the Company or the Operating Partnership, threatened by the Commission; the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of a Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); and all requests by the Commission for additional information shall have been complied with to the reasonable satisfaction of the Subject Agent Agents and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes, shall have occurred and be in effect at the time the Company delivers a Transaction Proposal to the Subject Agent or the time the Subject Agent delivers a Transaction Acceptance to the Companyany Agent; and (ii) the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time the Company delivers a Transaction Proposal to the Subject Agent or the time the Subject Agent delivers a Transaction Acceptance to the Companyany Agent.
(f) f. The Company and the Operating Partnership shall reasonably cooperate with any reasonable due diligence review requested by the Subject Agent Agents or its the Agents’ counsel from time to time in connection with the transactions contemplated hereby or any Terms Agreement, including, without limitation, : (i) at the commencement of each intended Purchase Date and any Time of Sale for any Principal Transaction or Principal Settlement Date, providing information and making available appropriate documents and appropriate corporate officers of the Company and the Operating Partnership and, upon reasonable request, representatives of Ernst each of ▇▇▇▇▇ & Young LLP (and, as applicableif the Registration Statement, Deloitte the Prospectus or any Permitted Free-Writing Prospectus shall include or incorporate by reference the financial statements of any entity or business (other than the consolidated financial statements of the Company and Touche LLP its subsidiaries), representatives of the independent registered public accounting firm that audited or reviewed such financial statements) for an update on diligence matters with representatives of the Subject Agent Agents and (ii) at each Bring-Down Delivery Date or and otherwise as the Subject Agent Agents may reasonably request, providing information and making available documents and appropriate corporate officers of the Company Company, the Operating Partnership and representatives of Ernst & Young LLP (and, as applicableif the Registration Statement, Deloitte the Prospectus or any Permitted Free-Writing Prospectus shall include or incorporate by reference the financial statements of any entity or business (other than the consolidated financial statements of the Company and Touche LLP its subsidiaries), representatives of the independent registered public accounting firm that audited or reviewed such financial statements) for one or more due diligence sessions with representatives of the Subject Agent Agents and its their counsel.
g. Notwithstanding the foregoing, the Company shall not be obligated to deliver (gor cause to be delivered) any of the documents referred to in Sections 6(b) through 6(d) hereof, be deemed to affirm any of the representations or warranties in this Agreement pursuant to Section 3 or 6(a) hereof after the date hereof during periods in which no Agency Transaction is then-contemplated until the Company delivers a Transaction Proposal to any Agent pursuant to this Agreement.
h. The Company shall disclose, in its Quarterly Reports on Form 10-Q and in its Annual Report on Form 10-KK to be filed by the Company with the Commission from time to time, the number amount of the Shares sold through the Agents under this Agreement, the Amended and Restated Alternative Distribution Agreements Agreement and any Terms Agreements and Alternative Terms AgreementsAgreement, and the gross and net proceeds to the Company from the sale of the Shares and the compensation paid by the Company with respect to sales of the Shares pursuant to this Agreement during the relevant quarter or, in the case of an Annual Report on Form 10-K, during the fiscal year covered by such Annual Report and the fourth quarter of such fiscal year. All opinions, letters and other documents referred to in Sections 6(b) through (d) above shall be reasonably satisfactory in form and substance to the Subject AgentAgents. The Subject Agent Agents will provide the Company with such notice (which may be oral, and in such case, will be confirmed via e-mail as soon as reasonably practicable thereafter) as is reasonably practicable under the circumstances when requesting an opinion, letter or other document referred to in Sections 6(b) through (d) above.
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