Covenants of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, covenant with each Underwriter as follows: (a) The Company will file the final Prospectus with the Commission within the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act, will file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the Securities Act, and will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent not previously delivered) to the Underwriters in New York City prior to 10:00 a.m., Central Time, on the business day next succeeding the date of this Agreement in such quantities as the Representatives may reasonably request. (b) The Company will deliver to the Representatives at or before the Closing Date, without charge, such number of copies of the Registration Statement (including such number of copies of exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and all amendments thereto, as the Representatives may reasonably request. The Company will deliver to the Underwriters at such addresses as they may request, and without charge, prior to 10:00 a.m., Central Time, on the business day next succeeding the date of this Agreement and during the period set forth in Section 6(g) or Section 6(h) hereof, as many copies of the Pricing Disclosure Package, the Prospectus and any supplements and amendments thereto or to the Registration Statement as the Representatives may reasonably request. The copies of the Registration Statement, Pricing Disclosure Package, the Prospectus and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T. (c) Before amending or supplementing the Registration Statement, the Pricing Disclosure Package or the Prospectus, or a document incorporated by reference therein, to furnish to the Representatives a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Representatives object, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule 424(b). (d) To furnish to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which the Representatives object. (e) Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder. (f) To advise the Representatives promptly, and confirm such advice in writing, (i) when the Registration Statement has become effective; (ii) when any amendment to the Registration Statement has been filed or becomes effective; (iii) when any supplement to the Prospectus or any Issuer Free Writing Prospectus or any amendment to the Prospectus has been filed; (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information; (v) of the issuance by the Commission of any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus or the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act; or (vi) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Company will use its best efforts to prevent the issuance of any such order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus or suspending any such qualification of the Shares and, if any such order is issued, will use its best efforts to obtain as soon as possible the withdrawal thereof. (g) If the Pricing Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Pricing Disclosure Package in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, or if any event shall occur or condition exist as a result of which the Pricing Disclosure Package conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Pricing Disclosure Package to comply with applicable law, promptly to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Pricing Disclosure Package so that the statements in the Pricing Disclosure Package as so amended or supplemented will not, in the light of the circumstances when the Pricing Disclosure Package is delivered to a prospective purchaser, be misleading or so that the Pricing Disclosure Package, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Pricing Disclosure Package, as amended or supplemented, will comply with applicable law. (h) If, during such period after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, promptly to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company) to which Shares may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law. (i) If, at or after the time this Agreement is executed and delivered, it is necessary or appropriate for a post-effective amendment to the Registration Statement, or a Rule 462 Registration Statement, to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462 Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Securities Act, as soon as possible. The Company will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462 Registration Statement has become effective and (ii) if Rule 430A under the Securities Act is relied upon, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Securities Act (which the Company agrees to file in a timely manner in accordance with such Rules). (j) To file within the time periods required by the Exchange Act all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required in connection with the offering or sale of the Shares. (k) Promptly to furnish such information or to take such action as the Representatives may reasonably request and otherwise to qualify the Shares for offer and sale under the securities or “blue sky” laws of such jurisdictions (domestic and foreign) as the Representatives shall reasonably request, and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares; provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject; and to promptly advise the Representatives of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. (l) The Company and the Operating Partnership will maintain internal control over financial reporting in compliance with the requirements of the Exchange Act sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorization, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (m) The Company and the Operating Partnership will maintain disclosure controls and procedures that are effective to perform the functions for which they were established and are designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms, and is accumulated and communicated to the Company’s management, including its principal executive officer and principal financial officer, to allow timely decisions regarding disclosure. (n) The Company will use its best efforts to meet the requirements to qualify as a REIT under the Code for its taxable year ending December 31, 2013, and thereafter will use its best efforts to continue to meet the requirements to qualify as a REIT under the Code, as the case may be, until the Board of Directors of the Company determines that it is no longer in the best interests of the Company and its stockholders to qualify as a REIT. (o) The Company and the Operating Partnership will take all necessary steps to comply and maintain compliance with the provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act applicable to them. (p) Pursuant to reasonable procedures developed in good faith, to retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act. (q) To make generally available to the Company’s security holders and to the Representatives as soon as practicable an earnings statement covering a period of at least twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Securities Act), which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder. (r) To use its best efforts to cause the Shares to be listed on the NYSE, subject only to official notice of issuance, and thereafter to remain so listed until the Board of Directors of the Company determines that it is no longer in the best interests of the Company and its stockholders for the Common Stock to be so listed. (s) During the period beginning on the date of this Agreement and continuing to and including 60 days after the date of the Prospectus, and without the prior written consent of the Representatives (which consent may be withheld at their sole discretion), not to (i) to issue, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether such transaction described in clause (i) or (ii) above is to be settled by delivery of the Common Stock or such other securities, in cash or otherwise, (iii) file any registration statement with the Commission relating to the offering of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock (other than any registration statement on Form S-8) or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii) above. The restrictions contained in the preceding sentence shall not apply to (i) the Shares to be sold hereunder, (ii) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant or the conversion of a security outstanding on the date of this Agreement as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (iii) the issuance and sale of, or entry into an agreement to issue and sell additional shares of any series of Outstanding Company Preferred Stock or shares of a newly-designated series of the Company’s preferred stock that, like the outstanding shares of Outstanding Company Preferred Stock, are convertible into shares of Common Stock solely upon a change in control of the Company, and which shares of newly-designated preferred stock rank on a par with and contain terms that are substantially equivalent to the terms of the Outstanding Company Preferred Stock, except for terms determined at the time of issuance and sale thereof, such as the coupon rate, first dividend payment date, and share cap amount. The Company hereby agrees that if (1) during the last 17 days of the 60-day restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the 60-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 60-day period, then the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, unless the Representatives waive such extension request; provided, that such extension will not apply if the Company (i) has a class of securities that are “actively-traded securities” within the meaning of Rule 101(c)(1) of Regulation M under the Exchange Act and (ii) meets the applicable requirements of paragraph (a)(1) o
Appears in 1 contract
Covenants of the Company and the Operating Partnership. The Each of the Company and the Operating PartnershipPartnership covenants with the Lead Managers, jointly and severally, covenant with each Underwriter International Manager participating in the offering of International Securities, as follows:
(a) The In respect to each offering of International Securities, the Company or the Operating Partnership, as the case may be, will file prepare a Prospectus Supplement setting forth the final number of International Securities covered thereby and their terms not otherwise specified in the International Prospectus pursuant to which the International Securities are being issued, the names of the International Managers participating in the offering and the number of International Securities which each severally has agreed to purchase, the names of the International Managers acting as co-managers in connection with the Commission within offering, the time periods specified price at which the International Securities are to be purchased by Rule 424(b) the International Managers from the Company or the Operating Partnership, as the case may be, the initial public offering price, if any, the selling concession and Rule 430Areallowance, 430B if any, and such other information as the Lead Managers and the Company or 430C under the Securities ActOperating Partnership, as the case may be, deem appropriate in connection with the offering of the International Securities; and the Company or the Operating Partnership, as the case may be, will file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the Securities Act, and will furnish promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations and each Issuer Free Writing will furnish to the International Managers named therein as many copies of the International Prospectus (to the extent not previously deliveredincluding such Prospectus Supplement) to the Underwriters in New York City prior to 10:00 a.m., Central Time, on the business day next succeeding the date of this Agreement in such quantities as the Representatives may Lead Managers shall reasonably request.
(b) The Company will deliver to If, at the Representatives at or before the Closing Date, without charge, such number of copies of the Registration Statement (including such number of copies of exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and all amendments thereto, as the Representatives may reasonably request. The Company will deliver to the Underwriters at such addresses as they may request, and without charge, prior to 10:00 a.m., Central Time, on the business day next succeeding the date of this Agreement and during the period set forth in Section 6(g) or Section 6(h) hereof, as many copies of the Pricing Disclosure Package, time the Prospectus and any supplements and amendments thereto or to the Registration Statement as the Representatives may reasonably request. The copies of the Registration Statement, Pricing Disclosure Package, the Prospectus and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof Supplement was filed with the Commission pursuant to ▇▇▇▇▇Rule 424(b) of the 1933 Act Regulations, except any information shall have been omitted therefrom in reliance upon Rule 430A of the 1933 Act Regulations, then immediately following the execution of the International Terms Agreement, the Company and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b) of the 1933 Act Regulations, a copy of an amended International Prospectus, or, if required by such Rule 430A, a post-effective amendment to the extent permitted Registration Statement (including amended International Prospectuses), containing all information so omitted. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than the date of execution of the International Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Regulation S-T.Rule 111 of the 1933 Act Regulations.
(c) Before amending or supplementing The Company and the Operating Partnership will notify the Lead Managers immediately, and confirm such notice in writing, of (i) the effectiveness of any amendment to the Registration Statement, (ii) the Pricing Disclosure Package or the Prospectus, or a document incorporated by reference therein, to furnish transmittal to the Representatives a copy Commission for filing of each such proposed any Prospectus Supplement or other supplement or amendment or supplement and not to file any such proposed amendment or supplement to which the Representatives object, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required International Prospectus to be filed pursuant to such Rule 424(b).
(d) To furnish to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf of1933 Act, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which the Representatives object.
(e) Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(f) To advise the Representatives promptly, and confirm such advice in writing, (i) when the Registration Statement has become effective; (ii) when any amendment to the Registration Statement has been filed or becomes effective; (iii) when the receipt of any supplement to comments from the Prospectus or any Issuer Free Writing Prospectus or any amendment to the Prospectus has been filed; Commission, (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the International Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information; , and (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use initiation of any Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus or the initiation or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Securities Act; or (vi) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Company and the Operating Partnership will use its best efforts make every reasonable effort to prevent the issuance of any such stop order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus or suspending any such qualification of the Shares and, if any such stop order is issued, will use its best efforts to obtain the lifting thereof at the earliest possible moment.
(d) At any time when the International Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the International Securities, the Company and the Operating Partnership will give the Lead Managers notice of its intention to file or prepare any amendment to the Registration Statement or any amendment or supplement to the International Prospectus, whether pursuant to the 1933 Act, 1934 Act or otherwise, will furnish the Lead Managers with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing and, unless required by law, will not file or use any such amendment or supplement or other documents in a form to which the Lead Managers or counsel for the International Managers shall reasonably object.
(e) The Company and the Operating Partnership will deliver to the Lead Managers as soon as possible as many signed copies of the withdrawal thereofRegistration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) as the Lead Managers may reasonably request and will also deliver to the Lead Managers as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the International Prospectus) as the Lead Managers may reasonably request.
(f) The Company and the Operating Partnership will furnish to each International Manager, from time to time during the period when the International Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such number of copies of the International Prospectus (as amended or supplemented) as such International Manager may reasonably request for the purposes contemplated by the 1933 Act or the 1934 Act or the respective applicable rules and regulations of the Commission thereunder.
(g) If the Pricing Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary necessary, in the reasonable opinion of counsel for the International Managers, to amend or supplement the Pricing Disclosure Package International Prospectus in order to make the International Prospectus not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, the Company and the Operating Partnership will forthwith amend or supplement the International Prospectus (in form and substance reasonably satisfactory to counsel for the International Managers) so that, as so amended or supplemented, the International Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, or if any event shall occur or condition exist as a result of which existing at the Pricing Disclosure Package conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, time it is necessary to amend or supplement the Pricing Disclosure Package to comply with applicable law, promptly to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Pricing Disclosure Package so that the statements in the Pricing Disclosure Package as so amended or supplemented will not, in the light of the circumstances when the Pricing Disclosure Package is delivered to a prospective purchaser, be misleading or so that the Pricing Disclosure Package, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Pricing Disclosure Package, as amended or supplemented, will comply with applicable law.
(h) If, during such period after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if, in and the opinion of counsel for Company and the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, promptly to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses the Representatives Operating Partnership will furnish to the CompanyInternational Managers a reasonable number of copies of such amendment or supplement.
(h) The Company and the Operating Partnership will endeavor, in cooperation with the International Managers, to qualify the International Securities for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions as the Lead Managers may designate. In each jurisdiction in which Shares may the International Securities have been sold so qualified, the Company and the Operating Partnership will file such statements and reports as may be required by the Representatives on behalf laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable lawInternational Securities.
(i) IfWith respect to each sale of International Securities, at or the Company and the Operating Partnership will make generally available to its security holders as soon as practicable, but not later than 90 days after the time this Agreement is executed and deliveredclose of the period covered thereby, it is necessary or appropriate for an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a posttwelve-month period beginning not later than the first day of the Company's fiscal quarter next following the "effective amendment to date" (as defined in said Rule 158) of the Registration Statement.
(j) Each of the Company and the Operating Partnership will use the net proceeds received by it from the sale of the International Securities in the manner specified in the International Prospectus under "Use of Proceeds."
(k) The Company and the Operating Partnership, if applicable, during the period when the International Prospectus is required to be delivered under the 1933 Act or a Rule 462 Registration Statementthe 1934 Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and become effective before the 1934 Act Regulations.
(l) The Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect to Preferred Stock, Depository Shares may be soldand Debt Securities, will use its best efforts to maintain the listing of any International Securities listed on the New York Stock Exchange.
(m) In respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor's Corporation ("S&P"), ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's") or any other nationally recognized statistical rating organization to provide their respective credit ratings of any International Securities, if applicable.
(o) During a period of 90 days from the date of any Prospectus Supplement relating to International Securities, the Company and the Operating Partnership will not, without the prior written consent of the Lead Managers, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of,
(i) any securities of the same class or series or ranking on a parity with any International Securities (other than the International Securities covered by such Prospectus Supplement or the U.S. Underwritten Securities covered by a related Prospectus Supplement) or any security convertible into or exchangeable for shares of such International Securities and (ii) if such Prospectus Supplement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than DMI Partnership (except as to Units exchanged by DMI Partnership pursuant to a Unit bonus plan for employees of the Company and its subsidiaries) and the directors and executive officers of the Company; (ii) grants of options, and the issuance of shares in respect of such options, pursuant to a stock option plan; (iii) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date of any Prospectus Supplement.
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use its best efforts to cause such post-effective amendment or such Rule 462 Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with list the Securities Act, as soon as possible. The Company will advise Common Stock on the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing,
(i) when such post-effective amendment or such Rule 462 Registration Statement has become effective and (ii) if Rule 430A under the Securities Act is relied upon, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Securities Act (which the Company agrees to file in a timely manner in accordance with such Rules)New York Stock Exchange.
(j) To file within the time periods required by the Exchange Act all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required in connection with the offering or sale of the Shares.
(k) Promptly to furnish such information or to take such action as the Representatives may reasonably request and otherwise to qualify the Shares for offer and sale under the securities or “blue sky” laws of such jurisdictions (domestic and foreign) as the Representatives shall reasonably request, and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares; provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject; and to promptly advise the Representatives of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(lr) The Company and the Operating Partnership will maintain internal control over financial reporting in compliance with the requirements of the Exchange Act sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorization, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
(m) The Company and the Operating Partnership will maintain disclosure controls and procedures that are effective to perform the functions for which they were established and are designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms, and is accumulated and communicated to the Company’s management, including its principal executive officer and principal financial officer, to allow timely decisions regarding disclosure.
(n) The Company will use its best efforts to meet the requirements to qualify as a REIT under the Code for its taxable year ending December 31, 2013, and thereafter will use its best efforts to continue to meet the requirements to qualify as a REIT "real estate investment trust" under the Code, as the case may be, until the Board of Directors of the Company determines that it is no longer in the best interests of the Company and its stockholders to qualify as a REIT.
(o) The Company and the Operating Partnership will take all necessary steps to comply and maintain compliance with the provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act applicable to them.
(p) Pursuant to reasonable procedures developed in good faith, to retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.
(q) To make generally available to the Company’s security holders and to the Representatives as soon as practicable an earnings statement covering a period of at least twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Securities Act), which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.
(r) To use its best efforts to cause the Shares to be listed on the NYSE, subject only to official notice of issuance, and thereafter to remain so listed until the Board of Directors of the Company determines that it is no longer in the best interests of the Company and its stockholders for the Common Stock to be so listed.
(s) During the period beginning on from the date of this Agreement and continuing to and including 60 days Closing Time until five years after the date of Closing Time, the ProspectusCompany and the Operating Partnership will deliver to the Lead Managers, and without the prior written consent of the Representatives (which consent may be withheld at their sole discretion), not to (i) promptly upon their becoming available, copies of all current, regular and periodic reports of the Company mailed to issue, offer, pledge, sell, contract to sell, sell its stockholders or filed with any option securities exchange or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock with the Commission or any securities convertible into or exercisable or exchangeable for Common Stock, (ii) enter into any swap or other arrangement that transfers governmental authority succeeding to another, in whole or in part, any of the economic consequences of ownership of the Common StockCommission's functions, whether such transaction described in clause (i) or (ii) above is to be settled by delivery of the Common Stock or such other securities, in cash or otherwise, (iii) file any registration statement with the Commission relating to the offering of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock (other than any registration statement on Form S-8) or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii) above. The restrictions contained in the preceding sentence shall not apply to (i) the Shares to be sold hereunder, (ii) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant or the conversion of a security outstanding on the date of this Agreement as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (iii) the issuance and sale of, or entry into an agreement to issue and sell additional shares of any series of Outstanding Company Preferred Stock or shares of a newly-designated series of the Company’s preferred stock that, like the outstanding shares of Outstanding Company Preferred Stock, are convertible into shares of Common Stock solely upon a change in control of the Company, and which shares of newly-designated preferred stock rank on a par with and contain terms that are substantially equivalent to the terms of the Outstanding Company Preferred Stock, except for terms determined at the time of issuance and sale thereof, such as the coupon rate, first dividend payment date, and share cap amount. The Company hereby agrees that if (1) during the last 17 days of the 60-day restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the 60-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 60-day period, then the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, unless the Representatives waive such extension request; provided, that such extension will not apply if the Company (i) has a class of securities that are “actively-traded securities” within the meaning of Rule 101(c)(1) of Regulation M under the Exchange Act and (ii) meets such other information concerning the applicable requirements of paragraph (a)(1) oCompany and the Operating Partnership as the Lead Managers may reasonably request.
Appears in 1 contract
Sources: Form 8 K
Covenants of the Company and the Operating Partnership. The Each of the Company and the Operating Partnership, jointly and severally, covenant Partnership covenants with each International Underwriter as follows:
(a) The Immediately following the execution of the applicable international Terms Agreement, the Company will file prepare a Prospectus Supplement setting forth the final number of International Securities covered thereby and their terms not otherwise specified in the Prospectus pursuant to which the International Securities are being issued, the names of the International Underwriters participating in the offering and the number of International Securities which each severally has agreed to purchase, the names of the International Underwriters acting in connection with the Commission within offering, the time periods specified price at which the International Securities are to be purchased by Rule 424(b) the International Underwriters from the Company, the initial public offering price, if any, the selling concession and Rule 430Areallowance, 430B or 430C under the Securities Actif any, will file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the Securities Actdelayed delivery arrangements, and such other information as you and the Company deem appropriate in connection with the offering of the International Securities; and the Company will furnish promptly transmit copies of the Prospectus and each Issuer Free Writing Prospectus (Supplement to the extent not previously deliveredCommission for filing pursuant to Rule 424(b) of the 1933 Act Regulations within the time period required by such Rule and will furnish to the International Underwriters named therein as many copies of the International Prospectus and such Prospectus Supplement as you shall reasonably request. If the Company elects to rely on Rule 434 under the 1933 Act Regulations, the Company will prepare an abbreviated term sheet that complies with the requirements of Rule 434 under the 1933 Act Regulations and will provide the International Underwriters with copies of the form of Rule 434 Prospectus, in such number as the International Underwriters may reasonably request, and file or transmit for filing with the Commission the form of International Prospectus complying with Rule 434(c)(2) of the 1933 Act Regulations in accordance with Rule 424(b) of the 1933 Act Regulations by the close of business in New York City prior to 10:00 a.m., Central Time, on the business day next immediately succeeding the date of this Agreement in such quantities as the Representatives may reasonably requestapplicable International Terms Agreement.
(b) The Company will deliver to the Representatives at or before the Closing Date, without charge, such number of copies of the Registration Statement (including such number of copies of exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and all amendments thereto, as the Representatives may reasonably request. The Company will deliver to the Underwriters at such addresses as they may request, and without charge, prior to 10:00 a.m., Central Time, on the business day next succeeding the date of this Agreement and during the period set forth in Section 6(g) or Section 6(h) hereof, as many copies of the Pricing Disclosure Package, the Prospectus and any supplements and amendments thereto or to the Registration Statement as the Representatives may reasonably request. The copies of the Registration Statement, Pricing Disclosure Package, the Prospectus and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(c) Before amending or supplementing the Registration Statement, the Pricing Disclosure Package or the Prospectus, or a document incorporated by reference therein, to furnish to the Representatives a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Representatives object, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule 424(b).
(d) To furnish to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which the Representatives object.
(e) Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(f) To advise the Representatives promptlynotify you immediately, and confirm such advice notice in writing, of (i) when the Registration Statement has become effective; (ii) when effectiveness of any amendment to the Registration Statement has been filed relating to or becomes effective; affecting the offering of the International Securities, (iiiii) when any supplement the transmittal to the Prospectus or any Issuer Free Writing Prospectus or any amendment to the Prospectus has been filed; (iv) of any request by the Commission for filing of any Prospectus Supplement or
(c) At any time when the International Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the International Securities, the Company will give you notice of its intention to file or prepare any amendment to the Registration Statement or any amendment or supplement to the International Prospectus or (including any revised prospectus which the receipt Company proposes for use by you in connection with the offering of any comments International Securities which differs from the International Prospectus on file at the Commission relating to at the time the Registration Statement became effective, whether or any other request by the Commission for any additional information; (vnot such revised prospectus is required to be filed pursuant to Rule 424(b) of the issuance by 1933 Act Regulations), whether pursuant to the Commission 1933 Act, 1934 Act or otherwise, and will furnish you with copies of any order suspending such amendment or supplement a reasonable amount of time prior to such proposed filing or preparation, as the effectiveness case may be, and will not file or prepare any such amendment or supplement or other documents in a form to which you or counsel for the International Underwriters shall reasonably object.
(d) The Company will deliver to each International Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, of each amendment thereto (including exhibits filed therewith or preventing or suspending incorporated by reference therein) as the use of any Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus or the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act; or (vi) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Company will use its best efforts to prevent the issuance of any such order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus or suspending any such qualification of the Shares and, if any such order is issued, will use its best efforts to obtain as soon as possible the withdrawal thereofInternational Underwriters may reasonably request.
(ge) The Company will furnish to each International Underwriter, from time to time during the period when the International Prospectus is required to be delivered under the 1933 Act or the Exchange Act, such number of copies of the International Prospectus (as amended or supplemented) as such International Underwriter may reasonably request for the purposes contemplated by the 1933 Act or the 1934 Act or the respective applicable rules and regulations of the Commission thereunder.
(f) If the Pricing Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary necessary, in the opinion of counsel for the International Underwriters or counsel for the Company, to amend or supplement the Pricing Disclosure Package International Prospectus in order to make the International Prospectus not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were madeexisting at the time it is delivered to a purchaser, not misleading, or if any event it shall occur or condition exist as a result of which the Pricing Disclosure Package conflicts with the information contained in the Registration Statement then on file, or ifbe necessary, in the opinion of counsel for the Underwriterseither such counsel, it is necessary at any such time to amend or supplement the Pricing Disclosure Package Registration Statement or the International Prospectus in order to comply with applicable lawthe 1933 Act or the 1934 Act, promptly to prepare, file with the Commission and furnish, at its own expense, Company will forthwith prepare an amendment of or supplement to the Underwriters Registration Statement or the International Prospectus (in form and substance satisfactory to any dealer upon request, either amendments or supplements to the Pricing Disclosure Package so that the statements in the Pricing Disclosure Package as so amended or supplemented will not, in the light of the circumstances when the Pricing Disclosure Package is delivered to a prospective purchaser, be misleading or so that the Pricing Disclosure Package, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Pricing Disclosure Package, as amended or supplemented, will comply with applicable law.
(h) If, during such period after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriters International Underwriters), whether by filing documents pursuant to the Prospectus (1933 Act, the 1934 Act or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealerotherwise, any event shall occur or condition exist as a result of which it is necessary to will amend or supplement the International Prospectus so that it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances when existing at the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) time it is delivered to a purchaser, not misleading, or if, in to make the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Registration Statement and International Prospectus to comply with applicable lawsuch requirements, promptly to prepare, file with and the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses the Representatives Company will furnish to the CompanyInternational Underwriters a reasonable number of copies of such amendment or supplement.
(g) The Company will endeavor, in cooperation with the International Underwriters and their counsel, to qualify the International Securities, the Warrant Shares, if any, and any securities issuable upon conversion of the Preferred Shares for offering and sale under the applicable securities laws and real estate syndication laws of such jurisdictions as you may designate. In each jurisdiction in which the International Securities, the Warrant Shares, if any, and the securities issuable upon conversion of the Preferred Shares may have been sold so qualified, the Company will file such statements and reports as may be required by the Representatives on behalf laws of such jurisdiction to continue such qualification in effect for a period of not less than one year from the effective date of the Underwriters and Registration Statement.
(h) With respect to any other dealers upon requesteach sale of International Securities, either amendments or supplements the Company will make generally available to its security holders as soon as practicable, but not later than 90 days after the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light close of the circumstances when period covered thereby, an earnings statement (in form complying with the Prospectus provisions of Rule 158 of the 1933 Act Regulations) covering a 12-month period beginning not later than the first day of the Company's fiscal quarter next following the "effective date of the registration statement" (or as defined in lieu thereof the notice referred to in such Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law158).
(i) IfThe Company, at during the period when the International Prospectus is required to be delivered under the 1933 Act or after the time this Agreement is executed and delivered1934 Act in connection with sales of the International Securities, it is necessary or appropriate for a post-effective amendment to the Registration Statement, or a Rule 462 Registration Statement, will file all documents required to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462 Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Securities Act, as soon as possible. The Company will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing,
(i) when such post-effective amendment or such Rule 462 Registration Statement has become effective and (ii) if Rule 430A under the Securities Act is relied upon, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under Section 13, 14 or 15 of the Securities 1934 Act (which the Company agrees to file in a timely manner in accordance with such Rules).
(j) To file within the time periods required prescribed by the Exchange 1934 Act all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required in connection with the offering or sale of the Shares.
(k) Promptly to furnish such information or to take such action as the Representatives may reasonably request and otherwise to qualify the Shares for offer and sale under the securities or “blue sky” laws of such jurisdictions (domestic and foreign) as the Representatives shall reasonably request, and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares; provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject; and to promptly advise the Representatives of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(l) The Company and the Operating Partnership will maintain internal control over financial reporting in compliance with the requirements of the Exchange 1934 Act sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorization, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differencesRegulations.
(m) The Company and the Operating Partnership will maintain disclosure controls and procedures that are effective to perform the functions for which they were established and are designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms, and is accumulated and communicated to the Company’s management, including its principal executive officer and principal financial officer, to allow timely decisions regarding disclosure.
(n) The Company will use its best efforts to meet the requirements to qualify as a REIT under the Code for its taxable year ending December 31, 2013, and thereafter will use its best efforts to continue to meet the requirements to qualify as a REIT under the Code, as the case may be, until the Board of Directors of the Company determines that it is no longer in the best interests of the Company and its stockholders to qualify as a REIT.
(o) The Company and the Operating Partnership will take all necessary steps to comply and maintain compliance with the provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act applicable to them.
(p) Pursuant to reasonable procedures developed in good faith, to retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.
(q) To make generally available to the Company’s security holders and to the Representatives as soon as practicable an earnings statement covering a period of at least twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Securities Act), which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.
(r) To use its best efforts to cause the Shares to be listed on the NYSE, subject only to official notice of issuance, and thereafter to remain so listed until the Board of Directors of the Company determines that it is no longer in the best interests of the Company and its stockholders for the Common Stock to be so listed.
(s) During the period beginning on the date of this Agreement and continuing to and including 60 days after the date of the Prospectus, and without the prior written consent of the Representatives (which consent may be withheld at their sole discretion), not to (i) to issue, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether such transaction described in clause (i) or (ii) above is to be settled by delivery of the Common Stock or such other securities, in cash or otherwise, (iii) file any registration statement with the Commission relating to the offering of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock (other than any registration statement on Form S-8) or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii) above. The restrictions contained in the preceding sentence shall not apply to (i) the Shares to be sold hereunder, (ii) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant or the conversion of a security outstanding on the date of this Agreement as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (iii) the issuance and sale of, or entry into an agreement to issue and sell additional shares of any series of Outstanding Company Preferred Stock or shares of a newly-designated series of the Company’s preferred stock that, like the outstanding shares of Outstanding Company Preferred Stock, are convertible into shares of Common Stock solely upon a change in control of the Company, and which shares of newly-designated preferred stock rank on a par with and contain terms that are substantially equivalent to the terms of the Outstanding Company Preferred Stock, except for terms determined at the time of issuance and sale thereof, such as the coupon rate, first dividend payment date, and share cap amount. The Company hereby agrees that if (1) during the last 17 days of the 60-day restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the 60-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 60-day period, then the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, unless the Representatives waive such extension request; provided, that such extension will not apply if the Company (i) has a class of securities that are “actively-traded securities” within the meaning of Rule 101(c)(1) of Regulation M under the Exchange Act and (ii) meets the applicable requirements of paragraph (a)(1) o
Appears in 1 contract
Sources: International Purchase Agreement (Crescent Real Estate Equities Inc)
Covenants of the Company and the Operating Partnership. The Each of the Company and the Operating PartnershipPartnership covenants with the Representatives, jointly and severally, covenant with each U.S. Underwriter participating in the offering of U.S. Underwritten Securities, as follows:
(a) The In respect to each offering of U.S. Underwritten Securities, the Company or the Operating Partnership, as the case may be, will file prepare a Prospectus Supplement setting forth the final number of U.S. Underwritten Securities covered thereby and their terms not otherwise specified in the U.S. Prospectus pursuant to which the U.S. Underwritten Securities are being issued, the names of the U.S. Underwriters participating in the offering and the number of U.S. Underwritten Securities which each severally has agreed to purchase, the names of the U.S. Underwriters acting as co-managers in connection with the Commission within offering, the time periods specified price at which the U.S. Underwritten Securities are to be purchased by Rule 424(b) the U.S. Underwriters from the Company or the Operating Partnership, as the case may be, the initial public offering price, if any, the selling concession and Rule 430Areallowance, 430B if any, and such other information as the Representatives and the Company or 430C under the Securities ActOperating Partnership, as the case may be, deem appropriate in connection with the offering of the U.S. Underwritten Securities; and the Company or the Operating Partnership, as the case may be, will file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the Securities Act, and will furnish promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations and each Issuer Free Writing will furnish to the U.S. Underwriters named therein as many copies of the U.S. Prospectus (to the extent not previously deliveredincluding such Prospectus Supplement) to the Underwriters in New York City prior to 10:00 a.m., Central Time, on the business day next succeeding the date of this Agreement in such quantities as the Representatives may shall reasonably request.
(b) The Company will deliver to If, at the Representatives at or before the Closing Date, without charge, such number of copies of the Registration Statement (including such number of copies of exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and all amendments thereto, as the Representatives may reasonably request. The Company will deliver to the Underwriters at such addresses as they may request, and without charge, prior to 10:00 a.m., Central Time, on the business day next succeeding the date of this Agreement and during the period set forth in Section 6(g) or Section 6(h) hereof, as many copies of the Pricing Disclosure Package, time the Prospectus and any supplements and amendments thereto or to the Registration Statement as the Representatives may reasonably request. The copies of the Registration Statement, Pricing Disclosure Package, the Prospectus and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof Supplement was filed with the Commission pursuant to ▇▇▇▇▇Rule 424(b) of the 1933 Act Regulations, except any information shall have been omitted therefrom in reliance upon Rule 430A of the 1933 Act Regulations, then immediately following the execution of the U.S. Terms Agreement, the Company and the Operating Partnership will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b) of the 1933 Act Regulations, a copy of an amended U.S. Prospectus, or, if required by such Rule 430A, a post-effective amendment to the extent permitted Registration Statement (including amended U.S. Prospectuses), containing all information so omitted. If required, the Company and the Operating Partnership will prepare and file or transmit for filing a Rule 462(b) Registration Statement not later than the date of execution of the U.S. Terms Agreement. If a Rule 462(b) Registration Statement is filed, the Company and the Operating Partnership shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Regulation S-T.Rule 111 of the 1933 Act Regulations.
(c) Before amending or supplementing The Company and the Operating Partnership will notify the Representatives immediately, and confirm such notice in writing, of
(i) the effectiveness of any amendment to the Registration Statement, ,
(ii) the Pricing Disclosure Package or the Prospectus, or a document incorporated by reference therein, to furnish transmittal to the Representatives a copy Commission for filing of each such proposed any Prospectus Supplement or other supplement or amendment or supplement and not to file any such proposed amendment or supplement to which the Representatives object, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required U.S. Prospectus to be filed pursuant to such Rule 424(b).
(d) To furnish to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf of1933 Act, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which the Representatives object.
(e) Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(f) To advise the Representatives promptly, and confirm such advice in writing, (i) when the Registration Statement has become effective; (ii) when any amendment to the Registration Statement has been filed or becomes effective; (iii) when the receipt of any supplement to comments from the Prospectus or any Issuer Free Writing Prospectus or any amendment to the Prospectus has been filed; Commission, (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the U.S. Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information; , and (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use initiation of any Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus or the initiation or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Securities Act; or (vi) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Company and the Operating Partnership will use its best efforts make every reasonable effort to prevent the issuance of any such stop order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus or suspending any such qualification of the Shares and, if any such stop order is issued, will use its best efforts to obtain the lifting thereof at the earliest possible moment.
(d) At any time when the U.S. Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the U.S. Underwritten Securities, the Company and the Operating Partnership will give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement or any amendment or supplement to the U.S. Prospectus, whether pursuant to the 1933 Act, 1934 Act or otherwise, will furnish the Representatives with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing and, unless required by law, will not file or use any such amendment or supplement or other documents in a form to which the Representatives or counsel for the U.S. Underwriters shall reasonably object.
(e) The Company and the Operating Partnership will deliver to the Representatives as soon as possible as many signed copies of the withdrawal thereofRegistration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) as the Representatives may reasonably request and will also deliver to the Representatives as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the U.S. Prospectus) as the Representatives may reasonably request.
(f) The Company and the Operating Partnership will furnish to each U.S. Underwriter, from time to time during the period when the U.S. Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such number of copies of the U.S. Prospectus (as amended or supplemented) as such U.S. Underwriter may reasonably request for the purposes contemplated by the 1933 Act or the 1934 Act or the respective applicable rules and regulations of the Commission thereunder.
(g) If the Pricing Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary necessary, in the reasonable opinion of counsel for the U.S. Underwriters, to amend or supplement the Pricing Disclosure Package U.S. Prospectus in order to make the U.S. Prospectus not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, the Company and the Operating Partnership will forthwith amend or supplement the U.S. Prospectus (in form and substance reasonably satisfactory to counsel for the U.S. Underwriters) so that, as so amended or supplemented, the U.S. Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, or if any event shall occur or condition exist as a result of which existing at the Pricing Disclosure Package conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, time it is necessary to amend or supplement the Pricing Disclosure Package to comply with applicable law, promptly to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Pricing Disclosure Package so that the statements in the Pricing Disclosure Package as so amended or supplemented will not, in the light of the circumstances when the Pricing Disclosure Package is delivered to a prospective purchaser, be misleading or so that the Pricing Disclosure Package, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Pricing Disclosure Package, as amended or supplemented, will comply with applicable law.
(h) If, during such period after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if, in and the opinion of counsel for Company and the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, promptly to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses the Representatives Operating Partnership will furnish to the CompanyU.S. Underwriters a reasonable number of copies of such amendment or supplement.
(h) The Company and the Operating Partnership will endeavor, in cooperation with the U.S. Underwriters, to qualify the U.S. Underwritten Securities for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions as the Representatives may designate. In each jurisdiction in which Shares may the U.S. Underwritten Securities have been sold so qualified, the Company and the Operating Partnership will file such statements and reports as may be required by the Representatives on behalf laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable lawU.S. Underwritten Securities.
(i) IfWith respect to each sale of U.S. Underwritten Securities, at or the Company and the Operating Partnership will make generally available to its security holders as soon as practicable, but not later than 90 days after the time this Agreement is executed and deliveredclose of the period covered thereby, it is necessary or appropriate for an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a posttwelve-month period beginning not later than the first day of the Company's fiscal quarter next following the "effective amendment to date" (as defined in said Rule 158) of the Registration Statement.
(j) Each of the Company and the Operating Partnership will use the net proceeds received by it from the sale of the U.S. Underwritten Securities in the manner specified in the U.S. Prospectus under "Use of Proceeds."
(k) The Company and the Operating Partnership, if applicable, during the period when the U.S. Prospectus is required to be delivered under the 1933 Act or a Rule 462 Registration Statementthe 1934 Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and become effective before the 1934 Act Regulations.
(l) The Company will file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities listed on such exchange and, unless otherwise agreed upon with respect to Preferred Stock, Depository Shares may be soldand Debt Securities, will use its best efforts to maintain the listing of any U.S. Underwritten Securities listed on the New York Stock Exchange.
(m) In respect to each offering of Debt Securities, the Operating Partnership will qualify an Indenture under the 1939 Act and will endeavor to have a Statement of Eligibility submitted on behalf of the Trustee.
(n) The Company and the Operating Partnership will take all reasonable action necessary to enable Standard & Poor's Corporation ("S&P"), ▇▇▇▇▇'▇ Investors Service, Inc. ("▇▇▇▇▇'▇") or any other nationally recognized statistical rating organization to provide their respective credit ratings of any U.S. Underwritten Securities, if applicable.
(o) During a period of 90 days from the date of any Prospectus Supplement relating to U.S. Underwritten Securities, the Company and the Operating Partnership will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for the sale of, enter into any agreement to sell, or otherwise dispose of, (i) any securities of the same class or series or ranking on a parity with any U.S. Underwritten Securities (other than the U.S. Underwritten Securities covered by such Prospectus Supplement or the International Securities covered by a related Prospectus Supplement) or any security convertible into or exchangeable for shares of such U.S. Underwritten Securities and (ii) if such Prospectus Supplement relates to Preferred Stock that is convertible into or exchangeable for Common Stock, any Common Stock or Units or any security convertible into or exchangeable for shares of Common Stock. This transfer restriction does not apply to (i) the possible issuance of shares of Common Stock upon the exchange of Units by holders of Units other than DMI Partnership (except as to Units exchanged by DMI Partnership pursuant to a Unit bonus plan for employees of the Company and its subsidiaries) and the directors and executive officers of the Company; (ii) grants of options, and the issuance of shares in respect of such options, pursuant to a stock option plan; (iii) the issuance of shares pursuant to a dividend reinvestment plan; and (iv) the issuance of shares of Common Stock, or any security convertible into or exchangeable or exercisable for Common Stock, in connection with the acquisition of real property or an interest or interests in real property, if the recipient of such shares or other securities agrees in writing to not, without the prior written consent of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and the Company and the Operating Partnership, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any of such securities until the expiration of a 90-day period from the date of any Prospectus Supplement.
(p) If the Preferred Stock is convertible into Common Stock, the Company will reserve and keep available at all times, free of preemptive rights and other similar rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the Company will use its best efforts to cause such post-effective amendment or such Rule 462 Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with list the Securities Act, as soon as possible. The Company will advise Common Stock on the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing,
(i) when such post-effective amendment or such Rule 462 Registration Statement has become effective and (ii) if Rule 430A under the Securities Act is relied upon, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Securities Act (which the Company agrees to file in a timely manner in accordance with such Rules)New York Stock Exchange.
(j) To file within the time periods required by the Exchange Act all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required in connection with the offering or sale of the Shares.
(k) Promptly to furnish such information or to take such action as the Representatives may reasonably request and otherwise to qualify the Shares for offer and sale under the securities or “blue sky” laws of such jurisdictions (domestic and foreign) as the Representatives shall reasonably request, and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares; provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject; and to promptly advise the Representatives of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(lr) The Company and the Operating Partnership will maintain internal control over financial reporting in compliance with the requirements of the Exchange Act sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorization, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
(m) The Company and the Operating Partnership will maintain disclosure controls and procedures that are effective to perform the functions for which they were established and are designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms, and is accumulated and communicated to the Company’s management, including its principal executive officer and principal financial officer, to allow timely decisions regarding disclosure.
(n) The Company will use its best efforts to meet the requirements to qualify as a REIT under the Code for its taxable year ending December 31, 2013, and thereafter will use its best efforts to continue to meet the requirements to qualify as a REIT "real estate investment trust" under the Code, as the case may be, until the Board of Directors of the Company determines that it is no longer in the best interests of the Company and its stockholders to qualify as a REIT.
(o) The Company and the Operating Partnership will take all necessary steps to comply and maintain compliance with the provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act applicable to them.
(p) Pursuant to reasonable procedures developed in good faith, to retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.
(q) To make generally available to the Company’s security holders and to the Representatives as soon as practicable an earnings statement covering a period of at least twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Securities Act), which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.
(r) To use its best efforts to cause the Shares to be listed on the NYSE, subject only to official notice of issuance, and thereafter to remain so listed until the Board of Directors of the Company determines that it is no longer in the best interests of the Company and its stockholders for the Common Stock to be so listed.
(s) During the period beginning on from the date of this Agreement and continuing to and including 60 days Closing Time until five years after the date of Closing Time, the ProspectusCompany and the Operating Partnership will deliver to the Representatives, and without the prior written consent of the Representatives (which consent may be withheld at their sole discretion), not to (i) promptly upon their becoming available, copies of all current, regular and periodic reports of the Company mailed to issue, offer, pledge, sell, contract to sell, sell its stockholders or filed with any option securities exchange or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock with the Commission or any securities convertible into or exercisable or exchangeable for Common Stock, (ii) enter into any swap or other arrangement that transfers governmental authority succeeding to another, in whole or in part, any of the economic consequences of ownership of the Common StockCommission's functions, whether such transaction described in clause (i) or (ii) above is to be settled by delivery of the Common Stock or such other securities, in cash or otherwise, (iii) file any registration statement with the Commission relating to the offering of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock (other than any registration statement on Form S-8) or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii) above. The restrictions contained in the preceding sentence shall not apply to (i) the Shares to be sold hereunder, (ii) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant or the conversion of a security outstanding on the date of this Agreement as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (iii) the issuance and sale of, or entry into an agreement to issue and sell additional shares of any series of Outstanding Company Preferred Stock or shares of a newly-designated series of the Company’s preferred stock that, like the outstanding shares of Outstanding Company Preferred Stock, are convertible into shares of Common Stock solely upon a change in control of the Company, and which shares of newly-designated preferred stock rank on a par with and contain terms that are substantially equivalent to the terms of the Outstanding Company Preferred Stock, except for terms determined at the time of issuance and sale thereof, such as the coupon rate, first dividend payment date, and share cap amount. The Company hereby agrees that if (1) during the last 17 days of the 60-day restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the 60-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 60-day period, then the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, unless the Representatives waive such extension request; provided, that such extension will not apply if the Company (i) has a class of securities that are “actively-traded securities” within the meaning of Rule 101(c)(1) of Regulation M under the Exchange Act and (ii) meets such other information concerning the applicable requirements of paragraph (a)(1) oCompany and the Operating Partnership as the Representatives may reasonably request.
Appears in 1 contract
Sources: Form 8 K
Covenants of the Company and the Operating Partnership. The Each of the Company and the Operating PartnershipPartnership covenants with you, jointly and severally, covenant with each Underwriter participating in the offering of Underwritten Securities, as follows:
(a) The Immediately following the execution of the applicable Terms Agreement, the Company will file prepare a Prospectus Supplement setting forth the final number of Underwritten Securities covered thereby and their terms not otherwise specified in the Prospectus pursuant to which the Underwritten Securities are being issued, the names of the Underwriters participating in the offering and the number of Underwritten Securities which each severally has agreed to purchase, the names of the Underwriters acting as co- managers in connection with the Commission within offering, the time periods specified price at which the Underwritten Securities are to be purchased by Rule 424(b) the Underwriters from the Company, the initial public offering price, if any, the selling concession and Rule 430Areallowance, 430B or 430C under the Securities Actif any, will file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the Securities Actdelayed delivery arrangements, and will furnish such other information as you and the Company deem appropriate in connection with the offering of the Underwritten Securities; and the Company will, by the close of business in New York on the business day immediately succeeding the date of the applicable Terms Agreement, transmit copies of the Prospectus and each Issuer Free Writing Prospectus (Supplement to the extent not previously deliveredCommission for filing pursuant to Rule 424(b) of the 1933 Act Regulations and will furnish to the Underwriters named therein as many copies of the Prospectus (including such Prospectus Supplement) as you shall reasonably request. If the Company elects to rely on Rule 434 under the 1933 Act Regulations, the Company will prepare an abbreviated term sheet that complies with the requirements of Rule 434 under the 1933 Act Regulations and will provide the Underwriters with copies of the form of Rule 434 Prospectus, in such number as the Underwriters may reasonably request, and file or transmit for filing with the Commission the form of Prospectus complying with Rule 434(c)(2) of the 1933 Act Regulations in accordance with Rule 424(b) of the 1933 Act Regulations by the close of business in New York City prior to 10:00 a.m., Central Time, on the business day next immediately succeeding the date of this Agreement in such quantities as the Representatives may reasonably requestapplicable Terms Agreement.
(b) The Company will deliver to the Representatives at or before the Closing Date, without charge, such number of copies of the Registration Statement (including such number of copies of exhibits filed therewith that may reasonably be requested), including documents incorporated by reference thereinnotify you immediately, and all amendments theretoconfirm such notice in writing, as of (i) the Representatives may reasonably request. The Company will deliver effectiveness of any amendment to the Underwriters at such addresses as they may request, and without charge, prior to 10:00 a.m., Central Time, on the business day next succeeding the date of this Agreement and during the period set forth in Section 6(g) or Section 6(h) hereof, as many copies of the Pricing Disclosure Package, the Prospectus and any supplements and amendments thereto or to the Registration Statement as the Representatives may reasonably request. The copies of the Registration Statement, Pricing Disclosure Package, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(c) Before amending or supplementing the Registration Statement, the Pricing Disclosure Package or the Prospectus, or a any document incorporated by reference therein, to furnish to the Representatives a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Representatives object, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule 424(b).
(d) To furnish to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf of1934 Act, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which the Representatives object.
(e) Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(f) To advise the Representatives promptly, and confirm such advice in writing, (i) when the Registration Statement has become effective; (ii) when any amendment to the Registration Statement has been filed or becomes effective; (iii) when the receipt of any supplement to comments from the Prospectus or any Issuer Free Writing Prospectus or any amendment to the Prospectus has been filed; Commission, (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information; , and (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use initiation of any Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus or the initiation or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Securities Act; or (vi) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the . The Company will use its best efforts make every reasonable effort to prevent the issuance of any such stop order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus or suspending any such qualification of the Shares and, if any such stop order is issued, will use its best efforts to obtain as soon as the lifting thereof at the earliest possible the withdrawal thereofmoment.
(gc) If the Pricing Disclosure Package is being used to solicit offers to buy the Shares at a At any time when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, the Company will give you notice of its intention to file or prepare any amendment to the Registration Statement or any amendment or supplement to the Prospectus, whether pursuant to the 1933 Act, 1934 Act or otherwise, (including any revised Prospectus which the Company proposes for use by the Underwriters in connection with an offering of Underwritten Securities which differs from the Prospectus on file at the Commission at the time the Registration Statement first becomes effective, whether or not yet available such revised Prospectus is required to prospective purchasers be filed pursuant to Rule 424(b) of the 1933 Act Regulations, or any abbreviated term sheet prepared in reliance on Rule 434 of the 1933 Act Regulations) and will furnish you with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or preparation, as the case may be, and will not file or prepare any such amendment or supplement or other documents in a form to which you or counsel for the Underwriters shall reasonably object.
(d) The Company will deliver to each Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) as such Underwriter reasonably requests.
(e) The Company will furnish to each Underwriter, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations.
(f) If at any time when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Pricing Disclosure Package in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, or if any event shall occur or condition exist as a result of which the Pricing Disclosure Package conflicts with the information contained in the Registration Statement then on file, or ifnecessary, in the opinion of counsel for the Underwriters, it is necessary to amend Underwriters or supplement the Pricing Disclosure Package to comply with applicable law, promptly to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Pricing Disclosure Package so that the statements in the Pricing Disclosure Package as so amended or supplemented will not, in the light of the circumstances when the Pricing Disclosure Package is delivered to a prospective purchaser, be misleading or so that the Pricing Disclosure Package, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Pricing Disclosure Package, as amended or supplemented, will comply with applicable law.
(h) If, during such period after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealerCompany, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein not misleading in the light of the circumstances when existing at the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) time it is delivered to a purchaser, not misleading, or ifif it shall be necessary, in the opinion of counsel for the Underwriterseither such counsel, it is necessary at any such time to amend or supplement the Registration Statement or the Prospectus in order to comply with applicable lawthe requirements of the 1933 Act or the 1933 Act Regulations, then the Company will promptly to prepare, prepare and file with the Commission and furnishsuch amendment or supplement, at its own expense, whether by filing documents pursuant to the Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company) to which Shares may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities 1933 Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(i) If, at or after the time this Agreement is executed and delivered, it is necessary or appropriate for a post-effective amendment to the Registration Statement, or a Rule 462 Registration Statement, to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment 1934 Act or such Rule 462 Registration Statement to be filed and become effectiveotherwise, and will pay any applicable fees in accordance with the Securities Act, as soon as possible. The Company will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing,
(i) when such post-effective amendment or such Rule 462 Registration Statement has become effective and (ii) if Rule 430A under the Securities Act is relied upon, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Securities Act (which the Company agrees to file in a timely manner in accordance with such Rules).
(j) To file within the time periods required by the Exchange Act all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required in connection with the offering or sale of the Shares.
(k) Promptly to furnish such information or to take such action as the Representatives may reasonably request and otherwise to qualify the Shares for offer and sale under the securities or “blue sky” laws of such jurisdictions (domestic and foreign) as the Representatives shall reasonably request, and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete correct such untrue statement or omission or to make the distribution Registration Statement and Prospectus comply, in the opinion of Counsel to the Underwriters, with such requirements, and the Company will furnish to the Underwriters a reasonable number of copies of such amendment or supplement.
(g) The Company will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions of the SharesUnited States as you may designate; provided, however, that the Company shall not be required obligated to qualify as a foreign corporation or to file a consent to service of process in any jurisdiction in which where it is not so qualified or qualified. In each jurisdiction in which the Underwritten Securities have been so qualified, the Company will file such statements and reports as may be required by the laws of such jurisdiction to subject itself continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities; provided, however, that the Company shall not be obligated to taxation in respect of doing business qualify as a foreign corporation in any jurisdiction in which where it is not otherwise so subject; and to promptly advise the Representatives of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purposequalified.
(lh) The With respect to each sale of Underwritten Securities, the Company and will make generally available to its security holders as soon as practicable, but not later than 60 days after the Operating Partnership will maintain internal control over financial reporting close of the period covered thereby, an earnings statement (in compliance form complying with the requirements provisions of Rule 158 of the Exchange 1933 Act sufficient to provide reasonable assurances that Regulations) covering a twelve month period beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (ias defined in such Rule 158) transactions are executed in accordance with management’s general or specific authorization, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differencesRegis- tration Statement.
(m) The Company and the Operating Partnership will maintain disclosure controls and procedures that are effective to perform the functions for which they were established and are designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms, and is accumulated and communicated to the Company’s management, including its principal executive officer and principal financial officer, to allow timely decisions regarding disclosure.
(ni) The Company will use its best efforts to meet the requirements to qualify as a REIT "real estate investment trust" under the Code for its the taxable year ending December 31in which sales of the Underwritten Securities are to occur.
(j) The Company will use the net proceeds received by it from the sale of the Underwritten Securities in the manner specified in the Prospectus under the caption "Use of Proceeds."
(k) The Company, 2013during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, will file all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time periods prescribed by the 1934 Act and thereafter the 1934 Act Regulations.
(l) Neither the Company nor the Operating Partnership will, during a period of 90 days from the date of the applicable Terms Agreement, with respect to the Underwritten Securities covered thereby, without your prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, any of the Company's or the Operating Partnership's equity securities (other than the Underwritten Securities which are to be sold pursuant to such Terms Agreement) or any securities convertible into or exchangeable into or exercisable for equity securities of either the Company or the Operating Partnership, except in accordance with this Agreement, pursuant to a dividend reinvestment plan, pursuant to employee or director stock option plans, or as partial or full payment for properties to be acquired by the Operating Partnership.
(m) If applicable, the Company will use its best efforts to continue to meet list the requirements to qualify as a REIT under the Code, as the case may be, until the Board of Directors of the Company determines that it is no longer in the best interests of the Company and its stockholders to qualify as a REIT.
(o) The Company and the Operating Partnership will take all necessary steps to comply and maintain compliance with the provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act applicable to them.
(p) Pursuant to reasonable procedures developed in good faith, to retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.
(q) To make generally available to the Company’s security holders and to the Representatives as soon as practicable an earnings statement covering a period of at least twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Securities Act), which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.
(r) To use its best efforts to cause the Shares to be listed on the NYSE, subject only to official notice of issuance, and thereafter to remain so listed until the Board of Directors of the Company determines that it is no longer in the best interests of the Company and its stockholders for the Common Stock to be so listed.
(s) During the period beginning on the date of this Agreement and continuing to and including 60 days after the date of the Prospectus, and without the prior written consent of the Representatives (which consent may be withheld at their sole discretion), not to (i) to issue, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of on the economic consequences of ownership of the Common Stock, whether such transaction described in clause (i) or (ii) above is to be settled by delivery of the Common New York Stock Exchange or such other securities, in cash or otherwise, (iii) file any registration statement with national exchange on which the Commission relating to the offering of any Company's shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock (other than any registration statement on Form S-8) or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii) above. The restrictions contained in the preceding sentence shall not apply to (i) the Shares to be sold hereunder, (ii) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant or the conversion of a security outstanding on the date of this Agreement as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (iii) the issuance and sale of, or entry into an agreement to issue and sell additional shares of any series of Outstanding Company Preferred Stock or shares of a newly-designated series of the Company’s preferred stock that, like the outstanding shares of Outstanding Company Preferred Stock, are convertible into shares of Common Stock solely upon a change in control of the Company, and which shares of newly-designated preferred stock rank on a par with and contain terms that are substantially equivalent to the terms of the Outstanding Company Preferred Stock, except for terms determined at the time of issuance and sale thereof, such as the coupon rate, first dividend payment date, and share cap amount. The Company hereby agrees that if (1) during the last 17 days of the 60-day restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the 60-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 60-day period, then the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, unless the Representatives waive such extension request; provided, that such extension will not apply if the Company (i) has a class of securities that are “actively-traded securities” within the meaning of Rule 101(c)(1) of Regulation M under the Exchange Act and (ii) meets the applicable requirements of paragraph (a)(1) olisted.
Appears in 1 contract
Covenants of the Company and the Operating Partnership. The Each ------------------------------------------------------- of the Company and the Operating PartnershipPartnership covenants with you, jointly and severally, covenant with each Underwriter participating in the offering of Underwritten Securities, as follows:
(a) The Immediately following the execution of the applicable Terms Agreement, the Company will file prepare a Prospectus Supplement setting forth the final number of Underwritten Securities covered thereby and their terms not otherwise specified in the Prospectus pursuant to which the Underwritten Securities are being issued, the names of the Underwriters participating in the offering and the number of Underwritten Securities which each severally has agreed to purchase, the names of the Underwriters acting as co-managers in connection with the Commission within offering, the time periods specified price at which the Underwritten Securities are to be purchased by Rule 424(b) the Underwriters from the Company, the initial public offering price, if any, the selling concession and Rule 430Areallowance, 430B or 430C under the Securities Actif any, will file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the Securities Actdelayed delivery arrangements, and will furnish such other information as you and the Company deem appropriate in connection with the offering of the Underwritten Securities; and the Company will, by the close of business in New York on the business day immediately succeeding the date of the applicable Terms Agreement, transmit copies of the Prospectus and each Issuer Free Writing Prospectus (Supplement to the extent not previously deliveredCommission for filing pursuant to Rule 424(b) of the 1933 Act Regulations and will furnish to the Underwriters named therein as many copies of the Prospectus (including such Prospectus Supplement) as you shall reasonably request. If the Company elects to rely on Rule 434 under the 1933 Act Regulations, the Company will prepare an abbreviated term sheet that complies with the requirements of Rule 434 under the 1933 Act Regulations and will provide the Underwriters with copies of the form of Rule 434 Prospectus, in such number as the Underwriters may reasonably request, and file or transmit for filing with the Commission the form of Prospectus complying with Rule 434(c)(2) of the 1933 Act Regulations in accordance with Rule 424(b) of the 1933 Act Regulations by the close of business in New York City prior to 10:00 a.m., Central Time, on the business day next immediately succeeding the date of this Agreement in such quantities as the Representatives may reasonably requestapplicable Terms Agreement.
(b) The Company will deliver to the Representatives at or before the Closing Date, without charge, such number of copies of the Registration Statement (including such number of copies of exhibits filed therewith that may reasonably be requested), including documents incorporated by reference thereinnotify you immediately, and all amendments theretoconfirm such notice in writing, as of (i) the Representatives may reasonably request. The Company will deliver effectiveness of any amendment to the Underwriters at such addresses as they may request, and without charge, prior to 10:00 a.m., Central Time, on the business day next succeeding the date of this Agreement and during the period set forth in Section 6(g) or Section 6(h) hereof, as many copies of the Pricing Disclosure Package, the Prospectus and any supplements and amendments thereto or to the Registration Statement as the Representatives may reasonably request. The copies of the Registration Statement, Pricing Disclosure Package, (ii) the transmittal to the Commission for filing of any Prospectus Supplement or other supplement or amendment to the Prospectus and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(c) Before amending or supplementing the Registration Statement, the Pricing Disclosure Package or the Prospectus, or a any document incorporated by reference therein, to furnish to the Representatives a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Representatives object, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule 424(b).
(d) To furnish to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf of1934 Act, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which the Representatives object.
(e) Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(f) To advise the Representatives promptly, and confirm such advice in writing, (i) when the Registration Statement has become effective; (ii) when any amendment to the Registration Statement has been filed or becomes effective; (iii) when the receipt of any supplement to comments from the Prospectus or any Issuer Free Writing Prospectus or any amendment to the Prospectus has been filed; Commission, (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information; , and (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use initiation of any Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus or the initiation or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Securities Act; or (vi) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the . The Company will use its best efforts make every reasonable effort to prevent the issuance of any such stop order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus or suspending any such qualification of the Shares and, if any such stop order is issued, will use its best efforts to obtain as soon as the lifting thereof at the earliest possible the withdrawal thereofmoment.
(gc) If the Pricing Disclosure Package is being used to solicit offers to buy the Shares at a At any time when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, the Company will give you notice of its intention to file or prepare any amendment to the Registration Statement or any amendment or supplement to the Prospectus, whether pursuant to the 1933 Act, 1934 Act or otherwise (including any revised Prospectus which the Company proposes for use by the Underwriters in connection with an offering of Underwritten Securities which differs from the Prospectus on file at the Commission at the time the Registration Statement first becomes effective, whether or not yet available such revised Prospectus is required to prospective purchasers be filed pursuant to Rule 424(b) of the 1933 Act Regulations, or any abbreviated term sheet prepared in reliance on Rule 434 of the 1933 Act Regulations), and will furnish you with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or preparation, as the case may be, and will not file or prepare any such amendment or supplement or other documents in a form to which you or counsel for the Underwriters shall reasonably object.
(d) The Company will deliver to each Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) as such Underwriter reasonably requests.
(e) The Company will furnish to each Underwriter, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations.
(f) If at any time when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Pricing Disclosure Package in order to make the statements thereinnecessary, in the light of the circumstances in which they were made, not misleading, or if any event shall occur or condition exist as a result of which the Pricing Disclosure Package conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Pricing Disclosure Package to comply with applicable law, promptly to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Pricing Disclosure Package so that the statements in the Pricing Disclosure Package as so amended or supplemented will not, in the light of the circumstances when the Pricing Disclosure Package is delivered to a prospective purchaser, be misleading or so that the Pricing Disclosure Package, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Pricing Disclosure Package, as amended or supplemented, will comply with applicable law.
(h) If, during such period after the first date of the public offering of the Shares as in the reasonable opinion of counsel for the Underwriters or counsel for the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealerCompany, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein not misleading in the light of the circumstances when existing at the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) time it is delivered to a purchaser, not misleading, or ifif it shall be necessary, in the reasonable opinion of counsel for the Underwriterseither such counsel, it is necessary at any such time to amend or supplement the Registration Statement or the Prospectus in order to comply with applicable lawthe requirements of the 1933 Act or the 1933 Act Regulations, then the Company will promptly to prepare, prepare and file with the Commission and furnishsuch amendment or supplement, at its own expense, whether by filing documents pursuant to the Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company) to which Shares may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities 1933 Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(i) If, at or after the time this Agreement is executed and delivered, it is necessary or appropriate for a post-effective amendment to the Registration Statement, or a Rule 462 Registration Statement, to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment 1934 Act or such Rule 462 Registration Statement to be filed and become effectiveotherwise, and will pay any applicable fees in accordance with the Securities Act, as soon as possible. The Company will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing,
(i) when such post-effective amendment or such Rule 462 Registration Statement has become effective and (ii) if Rule 430A under the Securities Act is relied upon, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Securities Act (which the Company agrees to file in a timely manner in accordance with such Rules).
(j) To file within the time periods required by the Exchange Act all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required in connection with the offering or sale of the Shares.
(k) Promptly to furnish such information or to take such action as the Representatives may reasonably request and otherwise to qualify the Shares for offer and sale under the securities or “blue sky” laws of such jurisdictions (domestic and foreign) as the Representatives shall reasonably request, and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete correct such untrue statement or omission or to make the Registration Statement and Prospectus comply with such requirements, and the Company will furnish to the Underwriters a reasonable number of copies of such amendment or supplement.
(g) The Company will endeavor, in cooperation with the Underwriters, to qualify the Underwritten Securities, the Warrant Securities, if any, and Common Shares issuable upon conversion of the Preferred Shares for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions of the United States as you may designate. In each jurisdiction in which the Underwritten Securities, the Warrant Securities, if any, and Common Shares issuable upon conversion of the Preferred Shares have been so qualified, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the SharesUnderwritten Securities and the Warrant Securities; provided, however, that the Company shall -------- ------- not be required obligated to (A) qualify as a foreign corporation or to entity in any jurisdiction where it is not so qualified, (B) file a any general consent to service of process process, or (C) take any action that would subject it to income taxation in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject; and to promptly advise the Representatives of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purposejurisdiction.
(lh) The With respect to each sale of Underwritten Securities, the Company and will make generally available to its security holders as soon as practicable, but not later than 90 days after the Operating Partnership will maintain internal control over financial reporting close of the period covered thereby, an earnings statement (in compliance form complying with the requirements provisions of Rule 158 of the Exchange 1933 Act sufficient to provide reasonable assurances that Regulations) covering a twelve month period beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (ias defined in such Rule 158) transactions are executed in accordance with management’s general or specific authorization, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differencesRegistration Statement.
(m) The Company and the Operating Partnership will maintain disclosure controls and procedures that are effective to perform the functions for which they were established and are designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms, and is accumulated and communicated to the Company’s management, including its principal executive officer and principal financial officer, to allow timely decisions regarding disclosure.
(ni) The Company will use its best efforts to meet the requirements to qualify as a REIT "real estate investment trust" under the Code for its the taxable year ending December 31in which sales of the Underwritten Securities are to occur.
(j) The Company, 2013, and thereafter will use its best efforts during the period when the Prospectus is required to continue to meet the requirements to qualify as a REIT be delivered under the Code1933 Act or the 1934 Act in connection with sales of the Underwritten Securities, will file all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time periods prescribed by the 1934 Act and the 1934 Act Regulations.
(k) If the Preferred Shares are convertible into Common Shares, the Company will reserve and keep available at all times, free of preemptive or other similar rights, a sufficient number of Common Shares for the purpose of enabling the Company to satisfy any obligations to issue such shares upon conversion of the Preferred Shares, as the case may be, until or upon the Board of Directors exercise of the Company determines that it is no longer in the best interests of the Company and its stockholders to qualify as a REITCommon Share Warrants.
(ol) The If applicable, the Company and the Operating Partnership will take all necessary steps to comply and maintain compliance with the provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act applicable to them.
(p) Pursuant to reasonable procedures developed in good faith, to retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.
(q) To make generally available to the Company’s security holders and to the Representatives as soon as practicable an earnings statement covering a period of at least twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Securities Act), which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.
(r) To use its best efforts to cause list the Common Shares to be listed on the NYSE, subject only to official notice of issuance, and thereafter to remain so listed until New York Stock Exchange or such other national exchange on which the Board of Directors of the Company determines that it is no longer in the best interests of the Company and its stockholders for the Company's Common Stock to be so Shares are then listed.
(sm) During If Preferred Shares are convertible into Common Shares, the period beginning Company will use its best efforts to list the Common Shares issuable on Conversion of the Preferred Shares on the date of this Agreement and continuing to and including 60 days after the date of the Prospectus, and without the prior written consent of the Representatives (which consent may be withheld at their sole discretion), not to (i) to issue, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common New York Stock or any securities convertible into or exercisable or exchangeable for Common Stock, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether such transaction described in clause (i) or (ii) above is to be settled by delivery of the Common Stock Exchange or such other securities, in cash or otherwise, (iii) file any registration statement with the Commission relating to the offering of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock (other than any registration statement national exchange on Form S-8) or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii) above. The restrictions contained in the preceding sentence shall not apply to (i) the Shares to be sold hereunder, (ii) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant or the conversion of a security outstanding on the date of this Agreement as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (iii) the issuance and sale of, or entry into an agreement to issue and sell additional shares of any series of Outstanding Company Preferred Stock or shares of a newly-designated series of which the Company’s preferred stock that, like the outstanding shares of Outstanding Company Preferred Stock, 's Common Shares are convertible into shares of Common Stock solely upon a change in control of the Company, and which shares of newly-designated preferred stock rank on a par with and contain terms that are substantially equivalent to the terms of the Outstanding Company Preferred Stock, except for terms determined at the time of issuance and sale thereof, such as the coupon rate, first dividend payment date, and share cap amount. The Company hereby agrees that if (1) during the last 17 days of the 60-day restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the 60-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 60-day period, then the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, unless the Representatives waive such extension request; provided, that such extension will not apply if the Company (i) has a class of securities that are “actively-traded securities” within the meaning of Rule 101(c)(1) of Regulation M under the Exchange Act and (ii) meets the applicable requirements of paragraph (a)(1) olisted.
Appears in 1 contract
Covenants of the Company and the Operating Partnership. The Company and the Operating Partnership, jointly and severally, covenant with each Underwriter as follows:
(a) The Company will file the final Prospectus with the Commission within the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act, will file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the Securities Act, and will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent not previously delivered) to the Underwriters in New York City prior to 10:00 a.m., Central Time, on the business day next succeeding the date of this Agreement in such quantities as the Representatives may reasonably request.
(b) The Company will deliver to the Representatives at or before the Closing Date, without charge, such number of copies of the Registration Statement (including such number of copies of exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and all amendments thereto, as the Representatives may reasonably request. The Company will deliver to the Underwriters at such addresses as they may request, and without charge, prior to 10:00 a.m., Central Time, on the business day next succeeding the date of this Agreement and during the period set forth in Section 6(g) or Section 6(h) hereof, as many copies of the Pricing Disclosure Package, the Prospectus and any supplements and amendments thereto or to the Registration Statement as the Representatives may reasonably request. The copies of the Registration Statement, Pricing Disclosure Package, the Prospectus and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(c) Before amending or supplementing the Registration Statement, the Pricing Disclosure Package or the Prospectus, or a document incorporated by reference therein, to furnish to the Representatives a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Representatives object, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule 424(b).
(d) To furnish to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which the Representatives object.
(e) Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(f) To advise the Representatives promptly, and confirm such advice in writing, (i) when the Registration Statement has become effective; (ii) when any amendment to the Registration Statement has been filed or becomes effective; (iii) when any supplement to the Prospectus or any Issuer Free Writing Prospectus or any amendment to the Prospectus has been filed; (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information; (v) of the issuance by the Commission of any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus or the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act; or (vi) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Company will use its best efforts to prevent the issuance of any such order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus or suspending any such qualification of the Shares and, if any such order is issued, will use its best efforts to obtain as soon as possible the withdrawal thereof.
(g) If the Pricing Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Pricing Disclosure Package in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, or if any event shall occur or condition exist as a result of which the Pricing Disclosure Package conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Pricing Disclosure Package to comply with applicable law, promptly to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Pricing Disclosure Package so that the statements in the Pricing Disclosure Package as so amended or supplemented will not, in the light of the circumstances when the Pricing Disclosure Package is delivered to a prospective purchaser, be misleading or so that the Pricing Disclosure Package, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Pricing Disclosure Package, as amended or supplemented, will comply with applicable law.
(h) If, during such period after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, promptly to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company) to which Shares may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(i) If, at or after the time this Agreement is executed and delivered, it is necessary or appropriate for a post-effective amendment to the Registration Statement, or a Rule 462 Registration Statement, to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462 Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Securities Act, as soon as possible. The Company will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing,
, (i) when such post-effective amendment or such Rule 462 Registration Statement has become effective and (ii) if Rule 430A under the Securities Act is relied upon, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Securities Act (which the Company agrees to file in a timely manner in accordance with such Rules).
(j) To file within the time periods required by the Exchange Act all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required in connection with the offering or sale of the Shares.
(k) Promptly to furnish such information or to take such action as the Representatives may reasonably request and otherwise to qualify the Shares for offer and sale under the securities or “blue sky” laws of such jurisdictions (domestic and foreign) as the Representatives shall reasonably request, and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares; provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject; and to promptly advise the Representatives of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(l) The Company and the Operating Partnership will maintain internal control over financial reporting in compliance with the requirements of the Exchange Act sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorization, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
(m) The Company and the Operating Partnership will maintain disclosure controls and procedures that are effective to perform the functions for which they were established and are designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms, and is accumulated and communicated to the Company’s management, including its principal executive officer and principal financial officer, to allow timely decisions regarding disclosure.
(n) The Company will use its best efforts to meet the requirements to qualify as a REIT under the Code for its taxable year ending December 31, 2013, and thereafter will use its best efforts to continue to meet the requirements to qualify as a REIT under the Code, as the case may be, until the Board of Directors of the Company determines that it is no longer in the best interests of the Company and its stockholders to qualify as a REIT.
(o) The Company and the Operating Partnership will take all necessary steps to comply and maintain compliance with the provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act applicable to them.
(p) Pursuant to reasonable procedures developed in good faith, to retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.
(q) To make generally available to the Company’s security holders and to the Representatives as soon as practicable an earnings statement covering a period of at least twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Securities Act), which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.
(r) To use its best efforts to cause the Shares to be listed on the NYSE, subject only to official notice of issuance, and thereafter to remain so listed until the Board of Directors of the Company determines that it is no longer in the best interests of the Company and its stockholders for the Common Stock to be so listed.
(s) During the period beginning on the date of this Agreement and continuing to and including 60 days after the date of the Prospectus, and without the prior written consent of the Representatives (which consent may be withheld at their sole discretion), not to (i) to issue, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether such transaction described in clause (i) or (ii) above is to be settled by delivery of the Common Stock or such other securities, in cash or otherwise, (iii) file any registration statement with the Commission relating to the offering of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock (other than any registration statement on Form S-8) or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii) above. The restrictions contained in the preceding sentence shall not apply to (i) the Shares to be sold hereunder, (ii) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant or the conversion of a security outstanding on the date of this Agreement as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (iii) the issuance and sale of, or entry into an agreement to issue and sell sell, (A) additional shares of any series of Outstanding Company the Company’s 9.25% Series A Cumulative Redeemable Preferred Stock (the “Series A Preferred Stock”), (B) additional shares of the Company’s 7.875% Series B Cumulative Redeemable Preferred Stock (the “Series B Preferred Stock”), or (C) shares of a newly-designated series of the Company’s preferred stock that, like the outstanding shares of Outstanding Company Series A Preferred Stock and Series B Preferred Stock, are convertible into shares of Common Stock solely upon a change in control of the Company, and which shares of newly-designated preferred stock rank on a par with and contain terms that are substantially equivalent to the terms of the Outstanding Company Series A Preferred Stock and Series B Preferred Stock, except for terms determined at the time of issuance and sale thereof, such as the coupon rate, first dividend payment date, and share cap amount. The Company hereby agrees that if (1) during the last 17 days of the 60-day restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the 60-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 60-day period, then the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, unless the Representatives waive such extension request; provided, that such extension will not apply if the Company (i) has a class of securities that are “actively-traded securities” within the meaning of Rule 101(c)(1) of Regulation M under the Exchange Act and (ii) meets the applicable requirements of paragraph (a)(1) o
Appears in 1 contract
Sources: Underwriting Agreement (Summit Hotel Properties, Inc.)
Covenants of the Company and the Operating Partnership. The Each of the ------------------------------------------------------ Company and the Operating PartnershipPartnership covenants with the Underwriter, jointly and severally, covenant with each Underwriter as follows:
(a) The Company Operating Partnership will file prepare a prospectus supplement (a "Prospectus Supplement") setting forth the final number of Debt Securities ---------------------- covered thereby and their terms not otherwise specified in the Prospectus pursuant to which the Debt Securities are being issued, the name of the Underwriter participating in the offering and the number of Debt Securities which the Underwriter has agreed to purchase, the price at which the Debt Securities are to be purchased by the Underwriter from the Operating Partnership, the selling concession and reallowance, if any, any delayed delivery arrangements, and such other information as the Underwriter and the Operating Partnership deem appropriate in connection with the offering of the Debt Securities; and the Operating Partnership will, by the close of business in New York on two business days immediately succeeding the date hereof, transmit copies of the Prospectus, relating to the Debt Securities, to the Commission within the time periods specified by for filing pursuant to Rule 424(b) and Rule 430A, 430B or 430C under of the Securities Act, will file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the Securities Act, 1933 Act Regulations and will furnish to the Underwriter as many copies of the Prospectus and each Issuer Free Writing (including such Prospectus (to the extent not previously deliveredSupplement) to the Underwriters in New York City prior to 10:00 a.m., Central Time, on the business day next succeeding the date of this Agreement in such quantities as the Representatives may shall reasonably requestbe requested.
(b) The Company or the Operating Partnership will deliver to notify the Representatives at or before the Closing Date, without charge, such number of copies of the Registration Statement (including such number of copies of exhibits filed therewith that may reasonably be requested), including documents incorporated by reference thereinUnderwriter immediately, and all amendments theretoconfirm such notice in writing, as of (i) the Representatives may reasonably request. The Company will deliver effectiveness of any amendment to the Underwriters at such addresses as they may request, and without charge, prior to 10:00 a.m., Central Time, on the business day next succeeding the date of this Agreement and during the period set forth in Section 6(g) or Section 6(h) hereof, as many copies of the Pricing Disclosure Package, the Prospectus and any supplements and amendments thereto or to the Registration Statement as the Representatives may reasonably request. The copies of the Registration Statement, Pricing Disclosure Package, (ii) the transmittal to the Commission for filing of any Prospectus or other supplement or amendment to the Prospectus and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(c) Before amending or supplementing the Registration Statement, the Pricing Disclosure Package or the Prospectus, or a any document incorporated by reference therein, to furnish to the Representatives a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Representatives object, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule 424(b).
(d) To furnish to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which the Representatives object.
(e) Not to take any action that would result in an Underwriter or the Company being required to file 1934 Act with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(f) To advise the Representatives promptly, and confirm such advice in writing, (i) when the Registration Statement has become effective; (ii) when any amendment respect to the Registration Statement has been filed or becomes effective; the Prospectus relating to the Debt Securities, (iii) when the receipt of any supplement comments from the Commission with respect to the Registration Statement or the Prospectus or any Issuer Free Writing Prospectus or any amendment relating to the Prospectus has been filed; Debt Securities, (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information; Prospectus, and (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use initiation of any Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus or the initiation or threatening of any proceeding proceedings for that purpose or pursuant to Section 8A of the Securities Act; or (vi) of the receipt by the purpose. The Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Company Operating Partnership will use its best efforts make every reasonable effort to prevent the issuance of any such stop order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus or suspending any such qualification of the Shares and, if any such stop order is issued, will use its best efforts to obtain as soon as the lifting thereof at the earliest possible the withdrawal thereofmoment.
(gc) At any time when the Prospectus relating to the Debt Securities is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Debt Securities, the Company or the Operating Partnership will give the Underwriter notice of its intention to file or prepare any amendment to the Registration Statement or any amendment or supplement to the Prospectus, whether pursuant to the 1933 Act, 1934 Act or otherwise, including any revised Prospectus which the Operating Partnership proposes for use by the Underwriter in connection with an offering of Debt Securities which differs from the Prospectus on file at the Commission at the time the Registration Statement first becomes effective, whether or not such revised Prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act Regulations, and will furnish the Underwriter with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or preparation, as the case may be, and will not file or prepare any such amendment or supplement or other documents in a form to which the Underwriter or counsel for the Underwriter shall reasonably object.
(d) The Company or the Operating Partnership will deliver to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) as the Underwriter reasonably requests.
(e) The Operating Partnership will furnish to the Underwriter, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Debt Securities, such number of copies of the Prospectus (as amended or supplemented) as the Underwriter may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations.
(f) If the Pricing Disclosure Package is being used to solicit offers to buy the Shares at a any time when the Prospectus is not yet available required to prospective purchasers and be delivered under the 1933 Act or the 1934 Act in connection with sales of the Debt Securities any event shall occur or condition shall exist as a result of which it is necessary to amend or supplement the Pricing Disclosure Package in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, or if any event shall occur or condition exist as a result of which the Pricing Disclosure Package conflicts with the information contained in the Registration Statement then on file, or ifnecessary, in the opinion of counsel for the Underwriters, it is necessary to amend Underwriter or supplement the Pricing Disclosure Package to comply with applicable law, promptly to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Pricing Disclosure Package so that the statements in the Pricing Disclosure Package as so amended or supplemented will not, in the light of the circumstances when the Pricing Disclosure Package is delivered to a prospective purchaser, be misleading or so that the Pricing Disclosure Package, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Pricing Disclosure Package, as amended or supplemented, will comply with applicable law.
(h) If, during such period after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealerOperating Partnership, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein not misleading in the light of the circumstances when existing at the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) time it is delivered to a purchaser, not misleadingor if it shall be necessary, in the opinion of either such counsel, at any such time to amend or ifsupplement the Registration Statement or the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, then the Company or the Operating Partnership, as the case may be, will promptly prepare and file with the Commission such amendment or supplement, whether by filing documents pursuant to the 1933 Act, the 1934 Act or otherwise, as may be necessary to correct such untrue statement or omission or to make the Registration Statement and Prospectus comply, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, promptly to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and Underwriter or Counsel to the dealers (whose names Operating Partnership, with such requirements, and addresses the Representatives Company or the Operating Partnership, as the case may be, will furnish to the Company) to which Shares may have been sold by the Representatives on behalf Underwriter a reasonable number of the Underwriters and to any other dealers upon request, either amendments copies of such amendment or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable lawsupplement.
(ig) IfThe Operating Partnership will endeavor, at or after the time this Agreement is executed and delivered, it is necessary or appropriate for a post-effective amendment to the Registration Statement, or a Rule 462 Registration Statement, to be filed in cooperation with the Commission and become effective before the Shares may be soldUnderwriter, the Company will use its best efforts to cause such post-effective amendment or such Rule 462 Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Securities Act, as soon as possible. The Company will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing,
(i) when such post-effective amendment or such Rule 462 Registration Statement has become effective and (ii) if Rule 430A under the Securities Act is relied upon, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Securities Act (which the Company agrees to file in a timely manner in accordance with such Rules).
(j) To file within the time periods required by the Exchange Act all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required in connection with the offering or sale of the Shares.
(k) Promptly to furnish such information or to take such action as the Representatives may reasonably request and otherwise to qualify the Shares Debt Securities for offer offering and sale under the applicable securities or “blue sky” laws and real estate syndication laws of such states and other jurisdictions (domestic and foreign) of the United States as the Representatives shall reasonably request, and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as Underwriter may be necessary to complete the distribution of the Sharesdesignate; provided, however, that the Company Operating Partnership shall not be required obligated to qualify as a foreign corporation or to file a consent to service of process in any jurisdiction in which where it is not so qualified or to subject itself to taxation in respect of doing business in any qualified. In each jurisdiction in which it is not otherwise the Debt Securities have been so subject; and to promptly advise the Representatives of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(l) The Company and qualified, the Operating Partnership will maintain internal control over financial reporting file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in compliance with effect for so long as may be required for the requirements distribution of the Exchange Act sufficient Debt Securities; provided, however, that the Operating Partnership shall not be obligated to provide reasonable assurances that (i) transactions are executed qualify as a foreign corporation in accordance with management’s general or specific authorization, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets, (iii) access to assets any jurisdiction where it is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differencesnot so qualified.
(mh) The Company and the Operating Partnership will maintain disclosure controls and procedures that timely file such reports pursuant to the 1934 Act as are effective necessary in order to perform make generally available to its securityholders as soon as practicable an earnings statement (in form complying with the functions provisions of Rule 158 of the 1933 Act Regulations) for which they were established and are designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and formspurposes of, and is accumulated and communicated to provide the Company’s managementbenefits contemplated by, including its principal executive officer and principal financial officer, to allow timely decisions regarding disclosurethe last paragraph of Section 11(a) of the 1933 Act.
(ni) The Company will use its best efforts to meet the requirements to qualify as a REIT "real estate investment trust" under the Code for its the taxable year ending December 31, 2013, and thereafter will use its best efforts to continue to meet the requirements to qualify as a REIT under the Code, as the case may be, until the Board of Directors in which sales of the Company determines that it is no longer in the best interests of the Company and its stockholders Debt Securities are to qualify as a REIToccur.
(oj) The Operating Partnership will use the net proceeds received by it from the sale of the Debt Securities in the manner specified in the Prospectus under the caption "Use of Proceeds."
(k) The Company and or the Operating Partnership will take all necessary steps Partnership, during the period when the Prospectus is required to comply and maintain compliance be delivered under the 1933 Act or the 1934 Act in connection with the provisions sales of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act applicable Debt Securities, will file all documents required to them.
(p) Pursuant to reasonable procedures developed in good faith, to retain copies of each Issuer Free Writing Prospectus that is not be filed with the Commission in accordance with Rule 433 under the Securities Act.
(q) To make generally available pursuant to the Company’s security holders and to the Representatives as soon as practicable an earnings statement covering a period of at least twelve months beginning after the effective date Section 13, 14 or 15 of the Registration Statement (as defined in Rule 158(c) under 1934 Act within the Securities Act), which shall satisfy time periods prescribed by the provisions of Section 11(a) of the Securities 1934 Act and Rule 158 thereunderthe 1934 Act Regulations.
(r) To use its best efforts to cause the Shares to be listed on the NYSE, subject only to official notice of issuance, and thereafter to remain so listed until the Board of Directors of the Company determines that it is no longer in the best interests of the Company and its stockholders for the Common Stock to be so listed.
(s) During the period beginning on the date of this Agreement and continuing to and including 60 days after the date of the Prospectus, and without the prior written consent of the Representatives (which consent may be withheld at their sole discretion), not to (i) to issue, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether such transaction described in clause (i) or (ii) above is to be settled by delivery of the Common Stock or such other securities, in cash or otherwise, (iii) file any registration statement with the Commission relating to the offering of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock (other than any registration statement on Form S-8) or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii) above. The restrictions contained in the preceding sentence shall not apply to (i) the Shares to be sold hereunder, (ii) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant or the conversion of a security outstanding on the date of this Agreement as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or (iii) the issuance and sale of, or entry into an agreement to issue and sell additional shares of any series of Outstanding Company Preferred Stock or shares of a newly-designated series of the Company’s preferred stock that, like the outstanding shares of Outstanding Company Preferred Stock, are convertible into shares of Common Stock solely upon a change in control of the Company, and which shares of newly-designated preferred stock rank on a par with and contain terms that are substantially equivalent to the terms of the Outstanding Company Preferred Stock, except for terms determined at the time of issuance and sale thereof, such as the coupon rate, first dividend payment date, and share cap amount. The Company hereby agrees that if (1) during the last 17 days of the 60-day restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the 60-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 60-day period, then the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, unless the Representatives waive such extension request; provided, that such extension will not apply if the Company (i) has a class of securities that are “actively-traded securities” within the meaning of Rule 101(c)(1) of Regulation M under the Exchange Act and (ii) meets the applicable requirements of paragraph (a)(1) o
Appears in 1 contract