Covenants of the Transaction Entities. The Transaction Entities, jointly and severally, covenant and agree with the Underwriters as follows: (a) The Transaction Entities, subject to Section 3(b), will comply with the requirements of Rule 430B and will notify you as soon as reasonably possible, (i) when any post‑effective amendment to the Registration Statement or a new registration statement relating to the Securities shall become effective, or any amendment or supplement to the Prospectus or any preliminary prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or the filing of a new registration statement or any amendment or supplement to the Prospectus or any preliminary prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or such new registration statement or of any order preventing or suspending the use of the Prospectus or any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the 1933 Act concerning the Registration Statement and (v) if either of the Transaction Entities becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities or receives from the Commission a notice pursuant to Rule 401(g)(2) of the 1933 Act Regulations. The Transaction Entities will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as each of them deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, they will promptly file such prospectus. The Transaction Entities will make reasonable efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof as soon as reasonably possible. The Transaction Entities shall pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations (including, if applicable, by updating the “Calculation of Filing Fee Tables” in accordance with Rule 456(b)(1)(ii) either as an exhibit to a post‑effective amendment to the Registration Statement or a prospectus filed pursuant to Rule 424(b)). (b) Each Transaction Entity will give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement or a new registration statement relating to the Securities or any amendment or supplement to any preliminary prospectus (including the base prospectus included in the Original Registration Statement or amendment thereto at the time it became effective) or to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representatives or counsel for the Underwriters shall reasonably object. The Transaction Entities will prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms of the Securities, in form and substance reasonably satisfactory to the Underwriters and attached as Exhibit A hereto, and shall file such Final Term Sheet as an “issuer free writing prospectus” pursuant to Rule 433, if required, as soon as possible after the Execution Time. (c) The Transaction Entities will deliver to the Representatives and counsel for the Underwriters, upon written request, signed copies of the Original Registration Statement as originally filed and any new registration statement containing the Prospectus and, in each case, any amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein or otherwise deemed to be a part thereof) and signed copies of all consents and certificates of experts. The copies of the Original Registration Statement and any new registration statement and, in each case, any amendment thereto furnished to the Representatives will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S‑T. (d) The Transaction Entities will deliver to each Underwriter, upon written request, as many copies of each preliminary prospectus and any amendment or supplement thereto as such Underwriter reasonably requests, and each Transaction Entity hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Transaction Entities will furnish to each Underwriter, without charge, during the period when a prospectus is required to be delivered (or but for the exception afforded by Rule 172 of the 1933 Act Regulations would be required to be delivered) under the 1933 Act or the 1934 Act in connection with sales of the Securities, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request. Each preliminary prospectus and the Prospectus and any amendment or supplement 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. (e) The Transaction Entities will comply with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations and the 1939 Act and the 1939 Act Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and the Prospectus. If, at any time when a prospectus is required to be delivered (or but for the exception afforded by Rule 172 of the 1933 Act Regulations would be required to be delivered) under the 1933 Act or the 1934 Act in connection with sales of the Securities, any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or counsel for the Transaction Entities, to amend the Registration Statement in order that the Registration Statement will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or amend or supplement the Prospectus or the General Disclosure Package in order that the Prospectus or the General Disclosure Package, as the case may be, 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 not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of either such counsel, at any such time to amend the Registration Statement, to file a new registration statement or to amend or supplement the Prospectus or the General Disclosure Package in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations (including, with respect to the filing of a new registration statement, if at any time either Transaction Entity is no longer eligible to use an automatic shelf registration statement), the Transaction Entities will promptly prepare and file with the Commission, subject to Section 3(b) and Section 3(k), such amendment, supplement or new registration statement as may be necessary to correct such statement or omission or to comply with such requirements, will use their best efforts to have such amendment or new registration statement declared effective as soon as practicable (if it is not an automatic shelf registration statement with respect to the Securities) and will furnish to the Underwriters such number of copies of such amendment, supplement or new registration statement as the Underwriters may reasonably request. If, prior to the completion of the public offer and sale of the Securities (which completion the Representatives shall promptly communicate to the Transaction Entities), at any time following the issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information then contained in the Registration Statement (or any other registration statement relating to the Securities) or the Prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Transaction Entities will promptly (i) notify the Representatives and (ii) either (1) amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission or (2) file a report with the Commission under the 1934 Act that corrects such untrue statement or omission and notify the Representatives in writing that such Issuer Free Writing Prospectus shall no longer be used. (f) The Transaction Entities will endeavor, in cooperation with the Underwriters, to qualify the Securities for offering and sale under the applicable securities laws and real estate syndication laws of such states and other jurisdictions of the United States as the Representatives may reasonably designate. In each jurisdiction in which the Securities have been so qualified, the Transaction Entities 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 Securities; provided, however, that neither of the Transaction Entities shall be obligated to qualify as a foreign entity in any jurisdiction where it is not so qualified or to submit generally to service of process in any jurisdiction in which it is not already so subject. (g) The Transaction Entities will timely file such reports pursuant to the 1934 Act as are necessary in order to make generally available to their securityholders as soon as practicable an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) for the purposes of, and to provide to the Underwriters the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act. (h) The REIT will use its best efforts to meet the requirements to qualify as a “real estate investment trust” under the Code for the taxable year in which sales of the Securities to the Underwriters pursuant to this Agreement are to occur. (i) The Transaction Entities, during the period when a prospectus is required to be delivered (or but for the exception afforded by Rule 172 of the 1933 Act Regulations would be required to be delivered) under the 1933 Act or the 1934 Act in connection with sales of the 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 period prescribed by the 1934 Act and the 1934 Act Regulations. (j) No Transaction Entity will, between the Execution Time and the Closing Time, without the prior written consent of the Representatives, which shall not be unreasonably withheld, offer or sell, grant any option for the sale of, or enter into any agreement to sell prior to the Closing Time, any debt securities issued or guaranteed by the Company or the REIT, which are of the same class or series or ranking on parity with the Securities with a maturity of more than one year (other than the Securities). The Representatives, in their sole discretion, may release the Transaction Entities from the obligations of this Section 3(j) at any time without notice. (k) Each of the Transaction Entities represents and agrees that, unless it obtains the Representatives’ prior consent, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Representatives and the prior consent of the Transaction Entities, it has not made and will not make any offer relating to the Securities that would constitute an “issuer free writing prospectus,” as defined in Rule 433, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission; provided, however, that the Underwriters are authorized to use any free writing prospectus that contains substantially only information specified in the Final Term Sheet. Any such free writing prospectus consented to by the Transaction Entities and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Transaction Entities represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to each and every Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (l) The date of this Agreement is not more than three years subsequent to the initial effective date of the Registration Statement. If, immediately prior to the third anniversary of the initial effective date of the Registration Statement, any Securities remain unsold by the applicable Underwriter(s) and a prospectus is required to be delivered by such Underwriter(s) under the 1933 Act or the 1934 Act in connection with the sale of such Securities, the Transaction Entities will, prior to that third anniversary, file, if they have not already done so, a new shelf registration statement or, if applicable, an automatic shelf registration statement relating to such Securities, and, if such registration statement is not an automatic shelf registration statement, will use their reasonable best efforts to cause such registration statement to be declared effective within 180 days after that third anniversary, and will take all other reasonable actions necessary or appropriate to permit the public offering and sale of such Securities to continue as contemplated in the expired registration statement relating to such Securities. References herein to the “Registration Statement” shall include such new shelf registration statement or automatic shelf registration statement, as the case may be. (m) The Transaction Entities will apply the net proceeds from the sale of the Securities as set forth under “Use of Proceeds” in the Prospectus.
Appears in 3 contracts
Sources: Underwriting Agreement (Kimco Realty OP, LLC), Underwriting Agreement (Kimco Realty OP, LLC), Underwriting Agreement (Kimco Realty OP, LLC)
Covenants of the Transaction Entities. The Transaction Entities, Entities jointly and severally, severally covenant and agree with the Underwriters each Underwriter as follows:
(a) The Transaction EntitiesTo furnish to the Underwriters copies of the Registration Statement (excluding exhibits) and copies of the preliminary prospectus and the Prospectus (or the Prospectus as amended or supplemented) in such quantities as the Underwriters may from time to time reasonably request. In case an Underwriter is required to deliver, subject to Section 3(bunder the Securities Act (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule), will comply with a prospectus relating to the requirements Securities after the nine-month period referred to in Section 10(a)(3) of Rule 430B and will notify you as soon as reasonably possiblethe Securities Act, (i) when any post‑effective or after the time a post-effective amendment to the Registration Statement is required pursuant to Item 512(a) of Regulation S-K under the Securities Act, upon the request of such Underwriter, and at its own expense, the Transaction Entities shall prepare and deliver to such Underwriter as many copies as such Underwriter may reasonably request of an amended Registration Statement or a new registration statement relating amended or supplemented prospectus complying with Item 512(a) of Regulation S-K or Section 10(a)(3) of the Securities Act, as the case may be.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to the Securities shall become effective, Underwriters a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Prospectus Underwriters reasonably 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. To furnish to the Underwriters a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Transaction Entities and not to use or refer to any preliminary proposed free writing prospectus shall to which the Underwriters reasonably object. Not to take any action that would result in an Underwriter or the Transaction Entities 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 such Underwriter that such Underwriter otherwise would not have been filedrequired to file thereunder.
(c) To file all reports and any definitive proxy or information statements required to be filed by the Transaction Entities with the Commission pursuant to Section 13(a), (ii13(c), 14 or 15(d) of the receipt Exchange Act for the duration of any comments from the Commission, Delivery Period.
(iiid) of any request by the Commission for any amendment To timely file such reports pursuant to the Registration Statement or Exchange Act as are necessary in order to make generally available to its security holders as soon as practicable an earning statement for the filing of a new registration statement or any amendment or supplement purposes of, and to provide to the Prospectus or any preliminary prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for additional informationUnderwriters the benefit contemplated by, (ivthe last paragraph of Section 11(a) of the Securities Act.
(e) To file any Permitted Free Writing Prospectus to the extent required by Rule 433 under the Securities Act in connection with any offer or sale of Securities and to provide copies of the Prospectus and each Permitted Free Writing Prospectus (to the extent not previously delivered or filed on the Commission’s Electronic Data Gathering, Analysis and Retrieval system or any successor system thereto) to each Underwriter via electronic mail in “.pdf” format on such filing date to an electronic mail account designated by such Underwriter.
(f) During the Delivery Period to advise each Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order suspending by the effectiveness of the Registration Statement or such new registration statement or of any order preventing or suspending the use of the Prospectus or any preliminary prospectusCommission, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any of such purposes purpose or of any examination pursuant to Section 8(e) of the 1933 Act concerning the Registration Statement and (v) if either of the Transaction Entities becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering Securities Act, or of the Securities or receives from the Commission a notice pursuant to Rule 401(g)(2) of the 1933 Act Regulations. The Transaction Entities will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as each of them deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus or for additional information; and, in the event that it was not, they will promptly file such prospectus. The Transaction Entities will make reasonable efforts to prevent of the issuance of any such stop order and, if or of any stop order is issued, to obtain preventing or suspending the lifting thereof as soon as reasonably possible. The Transaction Entities shall pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1)(i) use of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations (including, if applicable, by updating the “Calculation of Filing Fee Tables” in accordance with Rule 456(b)(1)(ii) either as an exhibit to a post‑effective amendment to the Registration Statement or a any prospectus filed pursuant to Rule 424(b)).
(b) Each Transaction Entity will give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement or a new registration statement relating to the Securities or any amendment or supplement to any preliminary prospectus (including the base prospectus included in the Original Registration Statement or amendment thereto at the time it became effective) or to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the Representatives with copies of suspending any such documents a qualification, to promptly use its commercially reasonable amount of time prior efforts to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representatives or counsel for the Underwriters shall reasonably object. The Transaction Entities will prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms of the Securities, in form and substance reasonably satisfactory to the Underwriters and attached as Exhibit A hereto, and shall file such Final Term Sheet as an “issuer free writing prospectus” pursuant to Rule 433, if required, as soon as possible after the Execution Timeobtain its withdrawal.
(cg) The Transaction Entities will deliver to If, after the Representatives date hereof and counsel for the Underwriters, upon written request, signed copies of the Original Registration Statement as originally filed and any new registration statement containing the Prospectus and, in each case, any amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein or otherwise deemed to be a part thereof) and signed copies of all consents and certificates of experts. The copies of the Original Registration Statement and any new registration statement and, in each case, any amendment thereto furnished to the Representatives will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S‑T.
(d) The Transaction Entities will deliver to each Underwriter, upon written request, as many copies of each preliminary prospectus and any amendment or supplement thereto as such Underwriter reasonably requests, and each Transaction Entity hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Transaction Entities will furnish to each Underwriter, without charge, during the period when a prospectus is required to be delivered Delivery Period, either (or but for the exception afforded by Rule 172 of the 1933 Act Regulations would be required to be deliveredi) under the 1933 Act or the 1934 Act in connection with sales of the Securities, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request. Each preliminary prospectus and the Prospectus and any amendment or supplement 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.
(e) The Transaction Entities will comply with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations and the 1939 Act and the 1939 Act Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and the Prospectus. If, at any time when a prospectus is required to be delivered (or but for the exception afforded by Rule 172 of the 1933 Act Regulations would be required to be delivered) under the 1933 Act or the 1934 Act in connection with sales of the Securities, any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or counsel for the Transaction Entities, to amend the Registration Statement in order that the Registration Statement will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or amend or supplement the Prospectus or the General Disclosure Package in order that the Prospectus or the General Disclosure Package, as the case may be, will not would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein not misleading therein, in the light of the circumstances existing at the time it is delivered to a purchaserunder which they were made, not misleading, or if (ii) for any other reason it shall be necessary, in the opinion of either necessary during such counsel, at any such time to amend the Registration Statement, to file a new registration statement or same period to amend or supplement the Prospectus or the General Disclosure Package to file any document in order to comply with the requirements of the 1933 Securities Act or the 1933 Act Regulations Exchange Act, to promptly advise the Underwriters by telephone (including, with respect confirmation in writing or electronic mail) and to the filing of a new registration statement, if at any time either Transaction Entity is no longer eligible to use an automatic shelf registration statement), the Transaction Entities will promptly prepare and file with the Commissionfile, subject to Section 3(b) and Section 3(k5(b), such amendment, with the Commission an amendment or supplement to the Registration Statement or new registration statement as may be necessary to the Prospectus which will correct such statement or omission or effect such compliance and to comply with such requirements, will use their best efforts to have such amendment or new registration statement declared effective as soon as practicable (if it is not an automatic shelf registration statement with respect to the Securities) and will furnish to the Underwriters such number of as many copies as they may reasonably request of such amendment, supplement amendment or new registration statement as supplement.
(h) If the Underwriters may reasonably request. If, prior Time of Sale Prospectus is being used to the completion of the public offer and sale of solicit offers to buy the Securities (which completion at a time when the Representatives Prospectus is not yet available to prospective purchasers and any event shall promptly communicate to the Transaction Entities), at any time following the issuance of an Issuer Free Writing Prospectus there occurred occur or occurs an event or development condition exist as a result of which such Issuer Free Writing it is necessary to amend or supplement the Time of Sale Prospectus conflicted or would conflict with the information then contained in the Registration Statement (or any other registration statement relating to the Securities) or the Prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent timecircumstances, not misleading, or if any event shall occur or condition exist as a result of which the Transaction Entities will promptly (i) notify Time of Sale Prospectus conflicts with the Representatives and (ii) either (1) 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 such Issuer Free Writing the Time of Sale Prospectus to eliminate or correct such conflictcomply with applicable law, untrue statement or omission or (2) forthwith to prepare, file a report with the Commission under and furnish, at its own expense, to the 1934 Act Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that corrects such untrue statement the statements in the Time of Sale Prospectus as so amended or omission and notify supplemented will not, in the Representatives in writing light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that such Issuer Free Writing Prospectus shall the Time of Sale Prospectus, as amended or supplemented, will no longer be usedconflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(fi) The Transaction Entities will endeavor, shall prepare a term sheet substantially in cooperation with the Underwriters, form of Schedule II-A hereto.
(j) To endeavor to qualify the Securities for offering offer and sale under the applicable securities laws and real estate syndication or Blue Sky laws of such states and other jurisdictions of the United States as the Representatives may Underwriters shall reasonably designate. In each jurisdiction in which the Securities have been so qualified, the Transaction Entities will file such statements request and reports as may be required by the laws of such jurisdiction to continue such qualification qualifications in effect for so long as may be required necessary under such laws for the distribution of the Securities; provided, however, that neither of the Transaction Entities .
(k) The Company shall be obligated continue to elect to qualify as a foreign entity in any jurisdiction where it is not so qualified or to submit generally to service of process in any jurisdiction in which it is not already so subject.
(g) The Transaction Entities will timely file such reports pursuant to REIT under the 1934 Act as are necessary in order to make generally available to their securityholders as soon as practicable an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) for the purposes of, Code and to provide to the Underwriters the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(h) The REIT will use its best efforts to meet the requirements to qualify as a “real estate investment trust” REIT under the Code for Code, unless its board of directors determines it is no longer in the taxable year stockholders’ best interests to do so.
(l) Whether or not the transactions contemplated in which sales this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of their obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Transaction Entities’ counsel and the Transaction Entities’ accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Transaction Entities and amendments and supplements to any of the foregoing, including the filing fees payable to the Commission relating to the Securities (within the time required by Rule 456(b)(1), if applicable), all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters pursuant to this Agreement are to occur.
and the Guarantees, including any transfer or other taxes payable thereon, (iiii) The Transaction Entities, during the period when a prospectus is required to be delivered (reasonable cost of printing or but for the exception afforded by Rule 172 of the 1933 Act Regulations would be required to be delivered) under the 1933 Act producing any Blue Sky or the 1934 Act legal investment memorandum in connection with sales the offer and sale of the Securities under state securities laws and all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 5(j) above, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky or legal investment memorandum, which shall not exceed $10,000, (iv) all filing fees and the reasonable fees and disbursements of counsel to the Underwriters incurred in connection with any review and qualification of the offering of the Securities by FINRA, (v) any costs and expenses of the Transaction Entities relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Securities, will file all documents required to be filed including, without limitation, expenses associated with the Commission pursuant to Section 13preparation or dissemination of any electronic road show, 14 or 15 expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the 1934 Act within Transaction Entities, travel and lodging expenses of the time period prescribed by representatives and officers of the 1934 Act Transaction Entities and any such consultants, (vi) the document production charges and expenses associated with printing this Agreement, (vii) all expenses in connection with any offer and sale of the Securities outside of the United States, including filing fees and the 1934 Act Regulationsreasonable fees and disbursements of counsel for the Underwriters in connection with offers and sales outside of the United States, (viii) the fees and expense of any of the Trustee and the fees and disbursements for counsel to the Trustee in connection with the Indenture and the Securities, (ix) the fees of any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) under the Exchange Act), and (x) all other costs and expenses incident to the performance of the obligations of the Transaction Entities under this Agreement for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section 5, Section 7 and the last paragraph of Section 9, each Underwriter will pay all of its costs and expenses, including any advertising expenses connected with any offers such Underwriter may make.
(jm) No During the period from the date hereof through and including the Closing Date, no Transaction Entity will, between the Execution Time and the Closing Time, without the your prior written consent of the Representativesconsent, which shall not be unreasonably withheldoffer, offer or sell, grant any option for the sale of, or enter into any agreement contract to sell prior to the Closing Time, or otherwise dispose of any debt securities issued or guaranteed by the Company or the REIT, which are of the same class or series or ranking on parity with the Securities with it and having a maturity tenor of more than one year (other than the Securities). The Representatives, in their sole discretion, may release the Transaction Entities from the obligations of this Section 3(j) at any time without noticeyear.
(kn) Each The Operating Partnership will apply the net proceeds from the sale of the Securities as described in each of the Time of Sale Prospectus and the Prospectus under the heading “Use of Proceeds.”
(o) The Transaction Entities will use their commercially reasonable efforts to comply with all of their agreements set forth in their representation letters relating to the approval of debt securities of the Transaction Entities represents and agrees that, unless it obtains the Representatives’ prior consent, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Representatives and the prior consent of the Transaction Entities, it has not made and will not make any offer relating to the Securities that would constitute an by DTC for “issuer free writing prospectus,book entry” as defined in Rule 433, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission; provided, however, that the Underwriters are authorized to use any free writing prospectus that contains substantially only information specified in the Final Term Sheet. Any such free writing prospectus consented to by the Transaction Entities and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Transaction Entities represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to each and every Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keepingtransfer.
(lp) The date of this Agreement is not more than three years subsequent to the initial effective date of the Registration Statement. If, immediately prior to If by the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration Statement, any of the Securities remain unsold by the applicable Underwriter(s) Underwriters, the Transaction Entities will file, if they have not already done so and are eligible to do so, a prospectus is required new automatic shelf registration statement relating to be delivered by such Underwriter(s) under the 1933 Act or Securities and the 1934 Act Guarantees, in connection with a form reasonably satisfactory to you. If at the sale of such SecuritiesRenewal Deadline the Transaction Entities are no longer eligible to file an automatic shelf registration statement, the Transaction Entities will, prior to that third anniversary, file, if they have not already done so, file a new shelf registration statement or, if applicable, an automatic shelf registration statement relating to such Securitiesthe Securities and the Guarantees, and, if such registration statement is not an automatic shelf registration statement, in a form reasonably satisfactory to you and will use their reasonable best efforts to cause such registration statement to be declared effective within 180 days after that third anniversary, and the Renewal Deadline. The Transaction Entities will take all other reasonable actions action necessary or appropriate to permit the public offering and sale of such the Securities to continue as contemplated in the expired registration statement relating to such the Securities. References herein to the “Registration Statement” Statement shall include such new automatic shelf registration statement or automatic such new shelf registration statement, as the case may be.
(mq) The Transaction Entities will apply agree to comply with all agreements set forth in the net proceeds from the sale representation letters of the Transaction Entities to DTC relating to the approval of the Exchange Securities as set forth under by DTC for “Use of Proceedsbook entry” in the Prospectustransfer.
Appears in 2 contracts
Sources: Underwriting Agreement (Spirit Realty Capital, Inc.), Underwriting Agreement (Spirit Realty, L.P.)
Covenants of the Transaction Entities. The Transaction Entities, Entities jointly and severally, severally covenant and agree with the Underwriters each Underwriter as follows:
(a) The Transaction EntitiesTo furnish to the Underwriters copies of the Registration Statement (excluding exhibits) and copies of the preliminary prospectus and the Prospectus (or the Prospectus as amended or supplemented) in such quantities as the Underwriters may from time to time reasonably request. In case an Underwriter is required to deliver, subject to Section 3(bunder the Securities Act (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule), will comply with a prospectus relating to the requirements Securities after the nine-month period referred to in Section 10(a)(3) of Rule 430B and will notify you as soon as reasonably possiblethe Securities Act, (i) when any post‑effective or after the time a post-effective amendment to the Registration Statement is required pursuant to Item 512(a) of Regulation S-K under the Securities Act, upon the request of such Underwriter, and at its own expense, the Transaction Entities shall prepare and deliver to such Underwriter as many copies as such Underwriter may reasonably request of an amended Registration Statement or a new registration statement relating amended or supplemented prospectus complying with Item 512(a) of Regulation S-K or Section 10(a)(3) of the Securities Act, as the case may be.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to the Securities shall become effective, Underwriters a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Prospectus Underwriters reasonably 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. To furnish to the Underwriters a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Transaction Entities and not to use or refer to any preliminary proposed free writing prospectus shall to which the Underwriters reasonably object. Not to take any action that would result in an Underwriter or the Transaction Entities 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 such Underwriter that such Underwriter otherwise would not have been filedrequired to file thereunder.
(c) To file all reports and any definitive proxy or information statements required to be filed by the Transaction Entities with the Commission pursuant to Section 13(a), (ii13(c), 14 or 15(d) of the receipt Exchange Act for the duration of any comments from the Commission, Delivery Period.
(iiid) of any request by the Commission for any amendment To timely file such reports pursuant to the Registration Statement or Exchange Act as are necessary in order to make generally available to its security holders as soon as practicable an earning statement for the filing of a new registration statement or any amendment or supplement purposes of, and to provide to the Prospectus or any preliminary prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for additional informationUnderwriters the benefit contemplated by, (ivthe last paragraph of Section 11(a) of the Securities Act.
(e) To file any Permitted Free Writing Prospectus to the extent required by Rule 433 under the Securities Act in connection with any offer or sale of Securities and to provide copies of the Prospectus and each Permitted Free Writing Prospectus (to the extent not previously delivered or filed on the Commission’s Electronic Data Gathering, Analysis and Retrieval system or any successor system thereto) to each Underwriter via electronic mail in “.pdf” format on such filing date to an electronic mail account designated by such Underwriter.
(f) During the Delivery Period to advise each Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order suspending by the effectiveness of the Registration Statement or such new registration statement or of any order preventing or suspending the use of the Prospectus or any preliminary prospectusCommission, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any of such purposes purpose or of any examination pursuant to Section 8(e) of the 1933 Act concerning the Registration Statement and (v) if either of the Transaction Entities becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering Securities Act, or of the Securities or receives from the Commission a notice pursuant to Rule 401(g)(2) of the 1933 Act Regulations. The Transaction Entities will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as each of them deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus or for additional information; and, in the event that it was not, they will promptly file such prospectus. The Transaction Entities will make reasonable efforts to prevent of the issuance of any such stop order and, if or of any stop order is issued, to obtain preventing or suspending the lifting thereof as soon as reasonably possible. The Transaction Entities shall pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1)(i) use of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations (including, if applicable, by updating the “Calculation of Filing Fee Tables” in accordance with Rule 456(b)(1)(ii) either as an exhibit to a post‑effective amendment to the Registration Statement or a any prospectus filed pursuant to Rule 424(b)).
(b) Each Transaction Entity will give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement or a new registration statement relating to the Securities or any amendment or supplement to any preliminary prospectus (including the base prospectus included in the Original Registration Statement or amendment thereto at the time it became effective) or to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the Representatives with copies of suspending any such documents a qualification, to promptly use its commercially reasonable amount of time prior efforts to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representatives or counsel for the Underwriters shall reasonably object. The Transaction Entities will prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms of the Securities, in form and substance reasonably satisfactory to the Underwriters and attached as Exhibit A hereto, and shall file such Final Term Sheet as an “issuer free writing prospectus” pursuant to Rule 433, if required, as soon as possible after the Execution Timeobtain its withdrawal.
(cg) The Transaction Entities will deliver to If, after the Representatives date hereof and counsel for the Underwriters, upon written request, signed copies of the Original Registration Statement as originally filed and any new registration statement containing the Prospectus and, in each case, any amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein or otherwise deemed to be a part thereof) and signed copies of all consents and certificates of experts. The copies of the Original Registration Statement and any new registration statement and, in each case, any amendment thereto furnished to the Representatives will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S‑T.
(d) The Transaction Entities will deliver to each Underwriter, upon written request, as many copies of each preliminary prospectus and any amendment or supplement thereto as such Underwriter reasonably requests, and each Transaction Entity hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Transaction Entities will furnish to each Underwriter, without charge, during the period when a prospectus is required to be delivered Delivery Period, either (or but for the exception afforded by Rule 172 of the 1933 Act Regulations would be required to be deliveredi) under the 1933 Act or the 1934 Act in connection with sales of the Securities, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request. Each preliminary prospectus and the Prospectus and any amendment or supplement 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.
(e) The Transaction Entities will comply with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations and the 1939 Act and the 1939 Act Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and the Prospectus. If, at any time when a prospectus is required to be delivered (or but for the exception afforded by Rule 172 of the 1933 Act Regulations would be required to be delivered) under the 1933 Act or the 1934 Act in connection with sales of the Securities, any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or counsel for the Transaction Entities, to amend the Registration Statement in order that the Registration Statement will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or amend or supplement the Prospectus or the General Disclosure Package in order that the Prospectus or the General Disclosure Package, as the case may be, will not would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein not misleading therein, in the light of the circumstances existing at the time it is delivered to a purchaserunder which they were made, not misleading, or if (ii) for any other reason it shall be necessary, in the opinion of either necessary during such counsel, at any such time to amend the Registration Statement, to file a new registration statement or same period to amend or supplement the Prospectus or the General Disclosure Package to file any document in order to comply with the requirements of the 1933 Securities Act or the 1933 Act Regulations Exchange Act, to promptly advise the Underwriters by telephone (including, with respect confirmation in writing or electronic mail) and to the filing of a new registration statement, if at any time either Transaction Entity is no longer eligible to use an automatic shelf registration statement), the Transaction Entities will promptly prepare and file with the Commissionfile, subject to Section 3(b) and Section 3(k5(b), such amendment, with the Commission an amendment or supplement to the Registration Statement or new registration statement as may be necessary to the Prospectus which will correct such statement or omission or effect such compliance and to comply with such requirements, will use their best efforts to have such amendment or new registration statement declared effective as soon as practicable (if it is not an automatic shelf registration statement with respect to the Securities) and will furnish to the Underwriters such number of as many copies as they may reasonably request of such amendment, supplement amendment or new registration statement as supplement.
(h) If the Underwriters may reasonably request. If, prior Time of Sale Prospectus is being used to the completion of the public offer and sale of solicit offers to buy the Securities (which completion at a time when the Representatives Prospectus is not yet available to prospective purchasers and any event shall promptly communicate to the Transaction Entities), at any time following the issuance of an Issuer Free Writing Prospectus there occurred occur or occurs an event or development condition exist as a result of which such Issuer Free Writing it is necessary to amend or supplement the Time of Sale Prospectus conflicted or would conflict with the information then contained in the Registration Statement (or any other registration statement relating to the Securities) or the Prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent timecircumstances, not misleading, or if any event shall occur or condition exist as a result of which the Transaction Entities will promptly (i) notify Time of Sale Prospectus conflicts with the Representatives and (ii) either (1) 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 such Issuer Free Writing the Time of Sale Prospectus to eliminate or correct such conflictcomply with applicable law, untrue statement or omission or (2) forthwith to prepare, file a report with the Commission under and furnish, at its own expense, to the 1934 Act Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that corrects such untrue statement the statements in the Time of Sale Prospectus as so amended or omission and notify supplemented will not, in the Representatives in writing light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that such Issuer Free Writing Prospectus shall the Time of Sale Prospectus, as amended or supplemented, will no longer be usedconflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(fi) The Transaction Entities will endeavor, shall prepare a term sheet substantially in cooperation with the Underwriters, form of Schedule II-A hereto.
(j) To endeavor to qualify the Securities for offering offer and sale under the applicable securities laws and real estate syndication or Blue Sky laws of such states and other jurisdictions of the United States as the Representatives may Underwriters shall reasonably designate. In each jurisdiction in which the Securities have been so qualified, the Transaction Entities will file such statements request and reports as may be required by the laws of such jurisdiction to continue such qualification qualifications in effect for so long as may be required necessary under such laws for the distribution of the Securities; provided, however, that neither of the Transaction Entities .
(k) The Company shall be obligated continue to elect to qualify as a foreign entity in any jurisdiction where it is not so qualified or to submit generally to service of process in any jurisdiction in which it is not already so subject.
(g) The Transaction Entities will timely file such reports pursuant to REIT under the 1934 Act as are necessary in order to make generally available to their securityholders as soon as practicable an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) for the purposes of, Code and to provide to the Underwriters the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(h) The REIT will use its best efforts to meet the requirements to qualify as a “real estate investment trust” REIT under the Code for Code, unless its board of directors determines it is no longer in the taxable year stockholders’ best interests to do so.
(l) Whether or not the transactions contemplated in which sales this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of their obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Transaction Entities’ counsel and the Transaction Entities’ accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Transaction Entities and amendments and supplements to any of the foregoing, including the filing fees payable to the Commission relating to the Securities (within the time required by Rule 456(b)(1), if applicable), all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters pursuant to this Agreement are to occur.
and the Guarantee, including any transfer or other taxes payable thereon, (iiii) The Transaction Entities, during the period when a prospectus is required to be delivered (reasonable cost of printing or but for the exception afforded by Rule 172 of the 1933 Act Regulations would be required to be delivered) under the 1933 Act producing any Blue Sky or the 1934 Act legal investment memorandum in connection with sales the offer and sale of the Securities under state securities laws and all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 5(j) above, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky or legal investment memorandum, which shall not exceed $10,000, (iv) all filing fees and the reasonable fees and disbursements of counsel to the Underwriters incurred in connection with any review and qualification of the offering of the Securities by FINRA, (v) any costs and expenses of the Transaction Entities relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Securities, will file all documents required to be filed including, without limitation, expenses associated with the Commission pursuant to Section 13preparation or dissemination of any electronic road show, 14 or 15 expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the 1934 Act within Transaction Entities, travel and lodging expenses of the time period prescribed by representatives and officers of the 1934 Act Transaction Entities and any such consultants, (vi) the document production charges and expenses associated with printing this Agreement, (vii) all expenses in connection with any offer and sale of the Securities outside of the United States, including filing fees and the 1934 Act Regulationsreasonable fees and disbursements of counsel for the Underwriters in connection with offers and sales outside of the United States, (viii) the fees and expense of any of the Trustee and the fees and disbursements for counsel to the Trustee in connection with the Indenture and the Securities, (ix) the fees of any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) under the Exchange Act), and (x) all other costs and expenses incident to the performance of the obligations of the Transaction Entities under this Agreement for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section 5, Section 7 and the last paragraph of Section 9, each Underwriter will pay all of its costs and expenses, including any advertising expenses connected with any offers such Underwriter may make.
(jm) No During the period from the date hereof through and including the Closing Date, no Transaction Entity will, between the Execution Time and the Closing Time, without the your prior written consent of the Representativesconsent, which shall not be unreasonably withheldoffer, offer or sell, grant any option for the sale of, or enter into any agreement contract to sell prior to the Closing Time, or otherwise dispose of any debt securities issued or guaranteed by the Company or the REIT, which are of the same class or series or ranking on parity with the Securities with it and having a maturity tenor of more than one year (other than the Securities). The Representatives, in their sole discretion, may release the Transaction Entities from the obligations of this Section 3(j) at any time without noticeyear.
(kn) Each The Operating Partnership will apply the net proceeds from the sale of the Securities as described in each of the Time of Sale Prospectus and the Prospectus under the heading “Use of Proceeds.”
(o) The Transaction Entities will use their commercially reasonable efforts to comply with all of their agreements set forth in their representation letters relating to the approval of debt securities of the Transaction Entities represents and agrees that, unless it obtains the Representatives’ prior consent, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Representatives and the prior consent of the Transaction Entities, it has not made and will not make any offer relating to the Securities that would constitute an by DTC for “issuer free writing prospectus,book entry” as defined in Rule 433, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission; provided, however, that the Underwriters are authorized to use any free writing prospectus that contains substantially only information specified in the Final Term Sheet. Any such free writing prospectus consented to by the Transaction Entities and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Transaction Entities represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to each and every Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keepingtransfer.
(lp) The date of this Agreement is not more than three years subsequent to the initial effective date of the Registration Statement. If, immediately prior to If by the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration Statement, any of the Securities remain unsold by the applicable Underwriter(s) Underwriters, the Transaction Entities will file, if they have not already done so and are eligible to do so, a prospectus is required new automatic shelf registration statement relating to be delivered by such Underwriter(s) under the 1933 Act or Securities and the 1934 Act Guarantee, in connection with a form reasonably satisfactory to you. If at the sale of such SecuritiesRenewal Deadline the Transaction Entities are no longer eligible to file an automatic shelf registration statement, the Transaction Entities will, prior to that third anniversary, file, if they have not already done so, file a new shelf registration statement or, if applicable, an automatic shelf registration statement relating to such Securitiesthe Securities and the Guarantee, and, if such registration statement is not an automatic shelf registration statement, in a form reasonably satisfactory to you and will use their reasonable best efforts to cause such registration statement to be declared effective within 180 days after that third anniversary, and the Renewal Deadline. The Transaction Entities will take all other reasonable actions action necessary or appropriate to permit the public offering and sale of such the Securities to continue as contemplated in the expired registration statement relating to such the Securities. References herein to the “Registration Statement” Statement shall include such new automatic shelf registration statement or automatic such new shelf registration statement, as the case may be.
(mq) The Transaction Entities will apply agree to comply with all agreements set forth in the net proceeds from the sale representation letters of the Transaction Entities to DTC relating to the approval of the Exchange Securities as set forth under by DTC for “Use of Proceedsbook entry” in the Prospectustransfer.
Appears in 2 contracts
Sources: Underwriting Agreement (Spirit Realty, L.P.), Underwriting Agreement (Spirit Realty, L.P.)